MOS 2275 > Chapter 4 > Flashcards

Chapter 4 Flashcards

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1
Q

What is the primary goal of a risk management plan in business organizations?

A

To minimize the potentially adverse impact of the legal environment through prevention and planned reaction to adverse events

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2
Q

True or False: Legal problems can always be avoided with good management practices.

A

False

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3
Q

When faced with a delinquent customer, what are some options a company might consider?

A
  • Give the customer an opportunity to recover financially before demanding payment
  • Offer to accept less than the full amount
  • Write off the debt altogether
  • Sell debt to a collection agency at a discount
  • Sue for the debt
  • File a claim if the customer is involved in bankruptcy proceedings
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4
Q

What is a potential legal consequence of a hacking attempt on a company’s computer system?

A

The company could potentially sue the group for trespass to its property

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5
Q

What must a company do if it experiences a pollution incident?

A

Report the pollution incident to the relevant environmental regulatory agency

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6
Q

Fill in the blank: A company’s insurance policy requires reporting a pollution incident within ______ days.

A

[5-10 days]

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7
Q

What are some implications of a legal dispute with a farmer due to a pollution incident?

A
  • Affects company’s relationship with the farmer
  • Potential damage to company’s reputation in the community
  • Possible loss of goodwill
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8
Q

What was the cause of the machine breakdown mentioned in the text?

A

A bearing in the machine failed, resulting in the ore conveyor belt catching fire

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9
Q

True or False: The insurer denied coverage for the machine breakdown because it was deemed a sudden and accidental event.

A

False

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10
Q

What is the legal duty of private businesses regarding consultation with Indigenous communities?

A

Private businesses do not have a legal duty to consult and accommodate Indigenous communities, but it is in their best interests to do so

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11
Q

What is an Impact and Benefit Agreement (IBA)?

A

A formal agreement between the affected Indigenous community and a company that addresses adverse effects of mining activity on the local community and environment

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12
Q

List some ways business activities can lead to disputes.

A
  • Equipment breakdown
  • Dissatisfied customers
  • Damaged goods
  • Problem employees
  • Relations with Indigenous communities
  • Pollution incident
  • Motor vehicle accidents
  • Hacking attempts
  • Bylaw changes
  • Delinquent customers
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13
Q

What is the most common method of Alternative Dispute Resolution (ADR)?

A

Negotiation

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14
Q

Fill in the blank: Alternative Dispute Resolution can be less costly and less ______ than litigation.

A

[time-consuming]

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15
Q

What is the primary advantage of negotiation in dispute resolution?

A

Allows parties to craft a solution that’s suitable for their particular situation

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16
Q

What steps should be taken when negotiating a dispute?

A
  • Investigate to determine the nature and extent of the dispute
  • Contact individuals on both sides to clarify the situation
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17
Q

True or False: The duty to consult and accommodate Aboriginal Peoples is entirely the responsibility of the businesses involved.

A

False

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18
Q

What triggers the duty to consult regarding Aboriginal rights?

A

When the Crown has knowledge of a right or title and considers an action that could adversely affect it

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19
Q

What are some actions that may be required if accommodation is necessary during consultation?

A
  • Adjusting the project
  • Changing the route of a roadway
  • Protecting burial sites
  • Financial arrangements like profit-sharing
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20
Q

What can happen if the Crown fails to engage in meaningful consultations?

A
  • Issuing an injunction halting a project
  • Awarding monetary compensation
  • Granting orders to carry out a project or to engage in deeper consultation
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21
Q

What does the Supreme Court say about the scope of the duty to consult?

A

It is seen on a spectrum depending on the nature of the right and the seriousness of the potentially adverse effect

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22
Q

What is a potential outcome for a company if it fails to consult adequately with Indigenous communities?

A

They may suffer from delays, suspensions, or cancellations of projects

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23
Q

Who typically carries out negotiations in a dispute?

A

Most often carried out by the parties to the dispute

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24
Q

What professionals may be hired to assist in negotiations?

A
  • Lawyer
  • Advocate
  • Counsellor with expertise
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25
What is the first step in the ADR negotiation process?
Investigate to determine the nature and extent of the dispute
26
What is the goal of negotiation?
To reach a resolution that’s agreeable to all parties
27
True or False: There are strict rules governing how negotiations must happen.
False
28
What is a release in the context of a settlement?
An agreement where a party agrees to relinquish past, present, and future claims arising from a certain event
29
What is the significance of apology legislation?
It permits an individual to show remorse without triggering adverse legal consequences
30
What may happen if negotiations reach an impasse?
Parties will have to determine if it’s worthwhile to continue or abandon the legal conflict
31
What is mediation in the context of ADR?
An ADR process whereby a neutral person, called a mediator, assists the parties in reaching a settlement
32
List some advantages of mediation.
* Less expensive * Quicker * Private and confidential * Helps preserve relationships * Tailored resolutions
33
What is an exclusion clause?
A provision that eliminates coverage for certain events or named perils
34
What is the purpose of the ADR Institute of Canada?
To maintain a national roster of mediators
35
What happens at the end of successful mediation?
Parties normally enter into a settlement agreement
36
What is arbitration?
A method for resolving a dispute whereby a third person, called an arbitrator, makes a decision
37
True or False: Arbitration decisions can usually be appealed.
False
38
What are some common areas where arbitration is used?
* Commercial disputes * Contract disputes * International transactions
39
What criteria must be met for a settlement agreement to be enforceable?
It must be a contract and can be enforced like any other contract
40
What is the legal implication of an apology in BC?
An apology is not an admission of guilt and cannot be used as evidence establishing liability
41
What are some factors that may lead to an impasse in negotiations?
* Willingness to compromise * Nature and significance of the dispute * Priority given to resolution
42
In what scenario is mediation mandated in Ontario?
Many civil (non-criminal) cases are referred to mediation before trial can be scheduled
43
What can happen if parties choose arbitration?
They can control the process and choose rules, making it private and final
44
What is the role of a mediator?
To manage the process, organize discussion, clear misunderstandings, and reduce tensions
45
What are the potential costs of litigation?
Slow, expensive, unpredictable, and can harm relationships
46
What is the significance of the New York Convention?
It ensures international arbitration awards are enforceable in the countries that have implemented the convention
47
What did the Supreme Court of Canada rule regarding the arbitration clause in the Uber case?
The arbitration clause was found to be unconscionable and invalid
48
What is a settlement agreement in mediation?
A contract that sets out the essential terms of the agreement reached
49
What is the difference between a plaintiff and a defendant?
* Plaintiff: the party that initiates a lawsuit * Defendant: the party being sued
50
Fill in the blank: The legal foundation and outcome of a lawsuit are governed by _______.
[legal rules contained in common law and statute law]
51
What is the potential risk of making an apology in a legal context?
It could void an insurance policy or encourage a lawsuit
52
What is the role of an arbitrator?
To make a decision based on submissions from both parties
53
What governs the legal foundation and outcome of a lawsuit?
Legal rules contained in common law and statute law
54
What do substantive rules address in a lawsuit?
Who should win the action and why
55
What do procedural rules dictate in a lawsuit?
How the claim is carried through the civil justice system
56
Who is the plaintiff in a lawsuit?
The party that initiates a lawsuit against another party
57
Who is the defendant in a lawsuit?
The party being sued
58
What is a limitation period?
The time period specified by legislation for commencing legal action after which the right to sue is lost
59
What is the general limitation period for most provinces in Canada?
2 years
60
What is the ultimate limitation period in Ontario, New Brunswick, BC, Saskatchewan, NS, and Manitoba?
15 years
61
What is the general limitation period in Alberta?
2 years
62
What are common exceptions to limitation periods?
* Minors * Persons with disabilities * Sexual assaults
63
What is the rationale for strict limitation periods?
* Provides strong incentive for plaintiffs to advance claims within a reasonable time * Prevents plaintiffs from advancing old claims where evidence has been lost * Provides defendants with certainty
64
What is commercial litigation?
Litigation involving businesses suing or being sued
65
What is a class action lawsuit?
A lawsuit launched by one person who represents a class of persons having similar claims against the same defendant
66
What is required for a class action to be certified?
* Pleadings disclose a cause of action * Identifiable class of two or more persons * Common issues among class members * Preferable procedure for resolution * Representative plaintiff without conflicting interests
67
What must occur if a settlement is not reached in a class action lawsuit?
The class action will proceed to be litigated on its merits
68
What are the four stages of a lawsuit in superior courts?
* Pleadings * Discovery * Trial and Decision * Enforcement
69
What are pleadings?
The formal documents concerning the basis for a lawsuit
70
What is a claim in the context of pleadings?
The formal document that initiates litigation by setting out the plaintiff’s allegations
71
What happens if the defendant fails to respond to a claim?
The defendant has admitted the claim
72
What is discovery in a lawsuit?
The process of disclosing evidence to support the claims in a lawsuit
73
What types of evidence may be disclosed during discovery?
* Relevant documents * Oral testimony * Expert reports * Electronic data
74
What is a summary judgement?
A procedure allowing a party to obtain a judgement on written evidence without a trial
75
What is the burden of proof in a trial?
The obligation on the plaintiff to prove their case 'on the balance of probabilities'
76
What does a judge decide in a trial?
What happened between the parties and whether their claims are justified
77
What is the outcome of a trial called?
The judgement of the court specifying which party is successful
78
What are costs in a lawsuit?
Legal expenses ordered by a judge for the loser to pay the winner
79
What is a judgement debtor?
The party ordered by the court to pay a specified amount to the winner of a lawsuit
80
What is the enforcement stage of a lawsuit?
The final stage where the judgment awarded to the winning party is enforced
81
What is the purpose of an appeal?
To argue to a higher court that a court decision is wrong
82
What is the role of the appellant in an appeal?
The party who begins or files an appeal
83
What is the focus of an appeal?
The judge’s understanding/application of the law
84
What are possible outcomes of an appeal?
* Confirm the original decision * Vary it * Reverse it * Order a new trial
85
What is the role of the respondent in an appeal?
The party against whom an appeal is filed
86
What are the possible outcomes of an appeal court ruling?
The appeal court may confirm, vary, reverse the original decision, or order a new trial in exceptional cases
87
What must the appellant show to seek leave to appeal to the Supreme Court of Canada?
The matter is of public importance or involves an important issue of law
88
Is leave to appeal to the Supreme Court of Canada likely to be granted?
Leave is unlikely to be granted
89
What is a contingency fee?
A fee based on a percentage of the judgement awarded, paid by the client to the lawyer only if the action is successful
90
What is a significant risk for Canadian companies doing business in the US?
Litigation with competitors, partners, suppliers, customers, and governments
91
In Canada, who pays the legal costs in civil litigation?
The losing party pays a portion of the winner’s legal costs
92
What is the general rule regarding losing party's legal costs in the U.S.?
No general rule that the losing party pays any of the winner’s legal costs
93
Are jury trials for civil actions common in Canada?
Jury trials for civil action are rare, except for defamation and personal injury cases
94
What factors may lead a court in Canada to deny a jury trial?
* Legal/factual issues are complex * The defendant may be prejudiced
95
Do litigants in the U.S. have a constitutional right concerning jury trials?
Yes, litigants have a constitutional right to a jury trial in a civil action
96
How are punitive damages awarded in Canada compared to the U.S.?
Punitive damages are rarely awarded in Canada and are much lower than in the U.S.
97
What is the status of damage awards for pain and suffering in Canada?
Capped in personal injury cases
98
What is the incentive to sue in the U.S. regarding damage awards?
Damage awards are much larger and punitive damages are generally available
99
How do class actions in Canada compare to those in the U.S.?
Class actions are more accessible and widely used in Canada than before, with decreasing distinctions from the U.S.
100
What is the impact of contingency fees in the U.S.?
They increase risk for business and improve accessibility to the legal system for claimants
101
What are discovery rules like in Canada compared to the U.S.?
Oral discovery can be restricted in Canada, while U.S. discovery rules are far-reaching and more time-consuming
102
Fill in the blank: In Canada, punitive damages are _______.
rarely awarded
103
True or False: In the U.S., there are caps on damages for pain and suffering in personal injury cases.
False
MOS 2275
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