1
Q
Substantive Law
A
Tells you what you can or cannot do
2
Q
Procedural Law
A
Determines how substantive laws will be enforced
3
Q
Public Law
A
regulates our relationship with the government
ex. the constitution
4
Q
Private Law
A
regulates our personal and business relationships, not government related
aka civil law
5
Q
Only this province uses the civil law legal system
A
Quebec
6
Q
Quebec’s noncriminal legal system is based on
A
french civil law
7
Q
what makes the civil law legal system different from the common law legal system
A
The judge and/or lawyers do not reference previous cases
8
Q
common law legal system
A
uses previous cases to help argue for current case
9
Q
common law legal system emerges from
A
England
10
Q
stare decisis
A
“stand by what has been decided”
looking at cases that have already happened and applying those decisions (following precedent)
11
Q
pros of state decisis (common law)
A
allows for predictability
you reference previous cases, and you can predict what the outcome of the case will be, can help avoid cases going to court
12
Q
Cons of stare decisis
A
inflexible, may not acknowledge changing social attitudes
13
Q
Most significant feature of the common law system
A
the decision of a judge is binding on all judges in lower courts
example of a lower court: small claims court
14
Q
Law of Equity
A
allows for flexibility, when someone is clearly in the right but common law states they would be in the wrong, the law of equity helps judges create a fair solution
15
Q
why was the law of equity created?
A
the restriction of state decisis puts limitations on the fairness of common law
16
Q
what is a con/concern of the law of equity
A
appears arbitrary
judges can just “make up rules to make things turn out how they want”
17
Q
Pettkus v. Becker
A
facts: they were not married, but lived as common law partners, business was in his name but she contributed a lot to the business under family law act she would not get anything as they aren’t married
result: court “made up” a rule to help deal with the fact that she was taken advantage of
18
Q
Statutes
A
another word for legislation (laws), determines how we can behave in canada
19
Q
If case law and statute law conflict, which one prevails
A
statute law
20
Q
what is the highest form of statute we have in canada?
A
the constitution
you cannot go against the constitution
21
Q
Constitution Act
A
created in 1867 when canada was founded, was formerly called the British North America Act
22
Q
Constitution is similar in principle to that of the
A
UK
23
Q
rule of law
A
nobody is above the law
24
Q
condition act amendment in 1982
A
charter of rights and freedom, rights of indigenous, procedure for amending constitution
25
Sections 91 and 92
divided powers between federal and provincial government
91 federal
92 provincial
26
why is power divided?
provinces have different needs and may need different legislation than other provinces
27
often times the divisions of power
overlap
28
federal government can take over provincial power in the case of:
emergencies, ex covid 19
POGG clause
29
Where provincial and federal law truly contradict, what happens (paramountcy)
the federal legislation is followed and the provincial no longer applies
30
executive branch
decision making branch, decide what should happen
31
legislative branch
actually create the law
32
judiciary branch
enforce/apply the law
33
Canada’s constitution legislation creation
1. introduction
2. debate
3. modifications
34
purpose of charter of rights and freedoms
eliminates power to interfere with human rights
(has internal limitations, ex you can’t just spew hate speech)
35
3 main limitations on charter rights
section 1: interference with rights is okay if it’s necessary for a free and democratic society
section 33: government can create laws that infringe on rights, but laws must be reviewed every 5 years (pretty much only in quebec)
section 32(1):everything in the charter of rights and freedom only relates to government/government related activities (ex, protesting on private property, the owners can kick you out, public property is government property so charter applies)
36
fundamental freedoms
freedom of religion, opinion expressions, peaceful assembly
37
democratic rights
the right to vote and qualify to be elected
38
mobility rights
section 6: Canadians can live travel and work in any part of canada,
39
legal rights
intended to protect us from unreasonable government interference
section 7, right to liberty, section 8 and 9 prohibit unreasonable search arrest or imprisonment
40
fundamental justice
everyone is intended to fairness in procedure and rule of law
41
equality rights
law must be applied equally to all, section 15 prohibits discrimination within law
42
language rights
french and english have equal status
43
human rights legislation
prohibits discrimination in areas like housing and employment, protected grounds include religion age race gender disabilities etc
continues to evolve with society
44
Alternative Dispute Resolution (ADR)
processes for resolving disputes as an alternative to litigation in the courts
45
ADR main methods
negotiation
mediation
arbitration
46
negotiation
disputing parties work out decision making themselves
best option: quickest, most control privacy and flexibility, ensured goodwill
47
mediation
neutral third party assists disputing parties in coming to a resolution, the parties still have to come to their own decision
still high control privacy and flexibility, likely goodwill, still pretty quick
48
arbitration
hybrid of mediation and litigation, dispute is submitted and third party makes binding decision
more privacy than litigation but less than mediation and negotiation, low control, moderate delay, privacy, flexibility, low predictability
49
litigation
actual court process, low control privacy and flexibility, lengthy delays
50
advantages of ADR over litigation
parties maintain control of solution
lower cost
less distraction and fewer delays
diminishes risk of unfavourable outcomes
preserves good will
51
disadvantage of ADR versus litigation
judicial fairness and impartiality are not ensured
litigation has more power to extract information (you can’t force people to show internal documents if not in court)
resolutions may not be enforceable
no public record of dispute or decision
decisions do not follow precedent (previous cases)
52
negotiation should be
the first course of action for people who find themselves in a disagreement
53
true or false: you cannot use any information from a negotiation in future litigations
true
54
mediator vs arbitrator
mediation can offer solution suggestions but the parties do not have to agree
arbitrators get the final say
55
what situations would mediation not be appropriate in?
- when power between parties is imbalanced
- when parties aren’t willing to disclose information
56
arbitrators tend to be
specialists in the dispute matter
57
arbitration is more __ than other forms of ADR
more costly and more formal
58
online dispute resolution (ODR)
overcomes location issues, reduces costs and enables quick resolution
59
court trials (litigation)
trials are open to public (some limitations like youth courts, publication ban)
procedures vary by province
all litigants (involved persons) have equal access to the courts
60
balance of probabilities
used in deciding civil matters
fact is considered proven true if it is more than 50% probable
61
beyond a reasonable doubt
used in criminal matters in court
judge or jury must be convinced beyond doubt that the accused is guilty
62
True or false: the same issue can face criminal and civil trail, and can have different results at each
True
63
Provincial court
lowest court level in canadian court hierarchy
jurisdiction over less serious criminal matters
small claims and family court are seperate bodies but still a division of the provincial court system (have limits on monetary payout)
64
superior court of a province
highest trial level court
unlimited ministry jurisdiction in civil matters
more serious criminal matters
wills, estates, bankruptcy courts
65
sentencing circles
used primarily for indigenous offenders and victims, based on restorative justice over punitive
involves community friends family members
66
process of civil litigation
try to settle in ADR methods before a decision is made to sue
courts will often require disputing parties to try ADR before they will instigate a trial
67
limitation periods
you have a certain amount of time to sue someone, that time depends on the matter
ensures disputes are resolved in a reasonable time frame with preserved evidence (ex, criminal trial witnesses could forget)
68
jurisdiction
determine which court will hear the action, substaintal and real connection between case and the court has to be proven
courts will consider all circumstances to ensure correct jurisdiction
online businesses can specify which jurisdiction a dispute would be resolved in in a contract
69
pre-trial procedures: pleadings
“pleadings” documents used to start and defend a lawsuit
statement of claim
statement of defence
counterclaim/defence to counterclaim
70
pre-trial procedures: discovery
discovery: research documents and records
71
discovery: examination for discovery
verbal exam of witnesses under oath
72
pre trial conference:
meeting determining which issues remain and which issues parties can resolve on their own
73
offer to settle
either party can make an offer to settle, if the other party/parties accept then it ends and no court
74
The trial
1. plaintiff presents case and witnesses first
2. cross examination from defendants lawyer
3. plaintiffs lawyer can’t ask leading questions
defendant presents their case/arguments
both parties summarize evidence and make argument to court
75
judgement: jury decides ____ and judge decides _____
if a jury: judge instructs matters of law
jury decides questions of fact, judge decides questions of law
jury bases decision on if they believe someone is guilty or not guilty, judge decides punishment (applies the law)
76
True or false: if a jury seems someone not guilty and the judge disagrees, they can overrule the jury and change the verdict
false, jury decision is binding
77
Remedies: what can the courts reward
damages (monetary compensation)
accounting - awarding profit made from wrongdoing to the other side (ex someone stole and sold your invention)
injunction - court stops you from doing something
specific performance - court forces you to do something
declaration - declaring that this is the rule or law
78
types of damages
general: pain and differing, or future lost wages
special: reimbursement for expenses incurred before the trial (ex medical)
punitive: punishing the wrongdoer instead of compensating victim
79
accounting (remedies)
awarding profit made from wrongdoing to the other side (ex someone stole and sold your invention)
80
injunction (remedies)
court stopping you from doing something
can be implied before and after court process
ex. pulling a stolen product off the shelves to prevent further damage
evidence has to be good for pre court injunction
81
specific performance
court forcing you to do something
82
judgements may award ___\
award legal costs
litigation costs are high so some people won’t sue because of that, that’s why they do this
typically awarded to the victor, but this is at discretion of court
83
enforcement
there is no guarantee that the amount awarded in a judgement will be paid
someone could be ordered to pay you 2 million, but if they don’t have it you’re not getting it
courts can seizure property and sell assets, garnish wages, to try and get this money
84
true or false: courts won’t force people to sell homes or take assets if they can prove they are necessary(ex having a family and that’s their only place to live)?
True
another ex. if they need every dollar they make to survive or provide, they won’t garnish you
85
class actions
multiple people get together with a common issue with someone else, and they sue them together
judgement binds every member of the class, court must certify the litigation as a class proceeding and appoint one representative plaintiff
86
pros of class action
reduces number of lawsuits, avoids inconsistent results, lower costs for parties and court system
87
intellectual property
governed by federal legislation
personal property referring to ideas information and creative works
walks a fine line of protecting mental effort while also encouraging new ideas and societal progress
88
five types of intellectual property
1. copyright
2. patents
3. trademarks
4. industrial design
5. confidential information
- trade secrets is a sub branch of this
89
copyright
the ability to copy or reproduce a created work - only you can do this
only the actual work is protected, not the thoughts or ideas
90
created of intellectual property has exclusive right to profit or control of their creation for a specific time period:
artists and authors: 50 years after death
corporations, sound, unknown authors and movies/photos: 50 years from date
91
after expiry of copyright, work becomes
free for everyone to use
part of the public domain
92
works protected under the copyright act:
literary works: articles postings news feeds books software code
dramatic works: movies tv shows stage footage, perfomances by dancers singers actors
music: compositions, CD tapes,
artistic: paintings drawings maps sculptures
communications: radio; cable, internet broadcasts
93
File sharing
owner has legal right to prevent unauthorized copying, reproduction, and renting
ex. downloading a song for public performance technically violates copyright
94
true or false: existence of copyright is automatic in canada
true, registration helps for establishing rightful ownership and gaining international protection
95
copyright can be
assigned (you can give someone copyrighted protection)
you still retain your moral rights
96
moral rights
attribution - want to be credited for that material and associated with it
integrity - the work can’t be distorted or changed to degrade it or bring harm to original owner
association - work can’t be assocated with products or companies that could be harmful to original owners reputation
97
fair dealing
exceptions to copyright that allow for use under certain conditions
examples include education, satire, parody, research or private study, review and criticism
98
in fair dealing it still must meet the fairness factor, this means
purpose, nature, amount of use; alternatives of use, and effect of use
99
infrigment of copyright includes:
benefiting from sale reproduction, distribution, or other commercial use benefits
100
in event of copyright infringement:
authors can seek injunction or compensations, and employers can be held responsible for infringement committed by employees
101
other exceptions to copyright
legislation and case law can be copied without fee, just can’t be represented as an offical version
quotations of material that is not extensive
if it is more important to have societal access to the information than to protect its creator
users with perceptual disabilities (ex converting works to braille)
private copies of music as long as it’s not for public use
102
remedies for copyright
interlocutory injunction: stopping infrigment before trial
permanent injunction: prohibiting production sale or distribution
enhanced injunctions: never allowed to access copyrighted materials of that nature again
anton puller order: material seized from manufacturers/distributors
damages: compensating victim for losses, accounting, punitive damages
103
true or false: rights holders can sue service providers that allow online infringement
true
104
Patent
the exclusive right to produce market and sell (profit) from a specific invention
105
to qualify for a patent the invention must be:
- new with no other patent for it
- original work of the inventor
- useful
-unique
- distinguishable
- possible to build with instruction manual filed with patent office (you have to prove you can actually build this thing)
106
true or false: theories concepts or obvious improvements are patentable
false, has to be concrete thing that exists and can be created with instructions
107
true or false: products designed for illegal purposes cannot be patented
true
108
inventions must be _____
registered with patent office before it can be granted
first to apply in your country - you get priority
joint patents - multiple owners
109
true or false: employers are permitted to patent the inventions of their employees
true
110
patent grants monopoly for 20 years, why only 20?
limits time so others can try and improve on it or expand it, improves innovation
inventions can license their patents to other manufactures similar to copyright
111
trademarks
protects terms, symbols, designs, sounds, or colours that identify a product or company, distinguishes it from a competitor
112
true or false: downloading and using trademarks from the internet for your own purposes is considered infringement
true
113
what is the purpose of trademarks?
to protect consumers for deception, maintain goodwill, reputation, relations with customer, and product identification of the company
114
trademarks must be:
registered - gives canadian owner rights for 10 years, which can then be renewed indefinitely
dinsticive - cannot be close to a known mark “knockoffs”
115
true or false: last names may not qualify as trademarks
true, other people have them and it wouldn’t be fair to other people with that last name
some cases surnames will become trademarked if it’s acquired distinctiveness from extensive and widespread use (ex, mcdonald’s, johnson & johnson)
116
true or false: you can trademark a functional aspect of your product, or your product itself
false
ex. lego, you can’t just say people can’t make connecting bricks
mcdonald’s couldn’t say other fast food places can’t sell burgers
117
true or false: trademark loses status as it becomes a generic term for a type of product
true
ex. kleenex or bandaid
118
Passing-Off
lawsuit where company sues another for misleading the public into thinking its dealing with a different business or person
must show proof of damage
119
Industrial design
the resgustarrion of a unique shape or pattern under the industrial design act
protects attractive and distinctive patterns, must be original
ex. original class coca-cola bottle
120
Indigenous perspective on intellectual property
general belief that traditional knowledge and cultural experessions belong to the whole community, not just the creator
shared, everyone should benefit
many indigenous are unaware that they can protect their work because of this, many people are infringing on their IP rights because of this
121
confidential information
where it is clear that info is intended to remain confidential, and is not common knowledge
typically in a business, employees have a duty not to disclose confidential information that could harm the business or bring personal benefit
122
true or false: there is no offical confidential information act
true, this duty stems from common law
trusts, fiduciary obligations
123
Trade secrets
particular kind of confidential information that gives a business person a competitive advantage
ex. the krabby patty secret formula
124
to be considered a trade secret information must be:
valuable to the business
not commonly known or readily avaible
125
trade secret disclosure may be prohibited by:
restrictive covenant or non-competition clause
non-disclosure agreements protects employer
126
in order to remedy confidential info/trade secrets, the plaintiff must:
show that the disclosure of information has caused harm
127
confidential information/ trade secrets remedies
injunction
damages
accounting
can also sue for breach of contract if it’s within your contract (non-disclosure provisions)
128
types of property
real property: land and anything attached to it
personal property:
chattels: tangible moveable personal property
chose in action: an intangible right is a claim one person has against another (ex claim for debt)
129
Real property
land and anything permanently attached to it
only the portion that can be permanently used or occupied
use is usually restricted by zoning laws
(just because you own it doesn’t mean you can do whatever you want)
130
true or false: mineral rights are usually seperate from surface rights
true, gold deep under the ground of your land you own may not rightfully belong to you
131
chattel
personal property that is not land and is moveable, not included in real estate sale unless expressly included in contract
132
fixture
is part of or is affixed to the land, and is therefor included in real estate sale even if not expressly stated.
can be excluded by explicitly saying that in the agreement for purchase
133
determining fixtures vs chattels
more complex than it seems
try to see fixtures as more permanent attachments, putting a bowling alley in your house could technically be removed easily and is not part of the house structure, but this could be argued either way
134
Estates in land
the right of possession to land granted by the crown (king/queen/government I think)
135
estates in land: fee simple
the right to use and sell land subject only to local restrictions
136
life estate
upon death of a life tenant property reverts back to original owner
137
leasehold estates:
land leased to a tenant for a specific period of time
138
easement
gives person right to use a portion of a someone else’s land, but does not give possession or ownership
139
easement by prescription
if you use someone’s house for a long time (like 10 ish years) you may gain easement even if not intentional or wanted
has to be tolerated (tolderated can mean ignored, ex if you used a parking spot you weren’t supposed to for a long time but landlord didn’t say no then you may gain easement)
140
adverse possession
a right to actual land possession through long-term use tolerated by legal owner
“squatters rights” but also not really because you can’t have squatters rights in ontario without permission from owner
141
Tenancy in common and joint tenancy
owning property together with not just yourself
142
tenancy in common
two or more people share interest in property, each owning a designated portion of title
your share goes to your heirs if you die, not the other people involved in the property unless they are your heirs
143
joint tenancy
two or more people own the entire property together, with a right of survivorship
144
right of survivorship
if one partner dies, the rest of the shares go to the surviving tenant
145
condominiums
owning a unit in a building, sharing ownership of the common elements (ex, gym, lobby, pool)
you become a member of the condominium corporation
146
condominium act
ontarios statutes governing condos
147
declaration
basic documents talking about creating cooperation
describes the units; can set restrictions on units (ex. restrictions on sales or leases of unit) or limit use on units (ex no pets)
148
Bylaws
similar to corporation bylaws
specifies number of meeting directors, notice of meetings, board of directors vote on changes, all owners are able to vote and majority wins
149
rules of the corporation (condo rules)
requires all persons bound by rules to comply with them (anyone who owns condo is bound)
rule becomes effective 30 days after notice unless 15% of owners put a demand for rule to be reconsidered
150
if an owner or occupant breaks rule
mandatory mediation and arbitration, or order of compliance issued
151
true or false: under s:135 the court can order permanent removal of someone for violating condo rules
false: the person has to be proven dangerous or posing a serious risk, with a few other conditions as well, but if all of this is proven true or harmful or whatever than they can permanently remove you
152
mortgages
involves debtor borrowing money and giving the creditor a claim against their properly in event of default (asset, take away, when no pay they take for pay)
153
charge
the legal term for a mortgage
154
mortgage default
violation of your mortgage loan agreement, typically failure to pay or not maintain insurance, property tax, etc.
155
mortgage defaults: contractual power of sale
the lender sells the secured property in the event of default (self property to recoup loss)
156
mortgage defaults: judicial sale
similar to contractual power of sale, but the court is the one that deals with the sale of the property to ensure the property is sold at market value
done to protect both debtor and lender, gives current owner a chance to keep the difference of whatever extra money is left from the sale after the creditor is paid
157
mortgage defaults; foreclosure
lendor can seize the property and keep it, they can choose to do whatever they want with it, sell it rent it live in it etc
158
when would a foreclosure typically happen?
if the value of the home is lower than the original purchase price
159
residential tenancies act 2006 (RTA)
governs the residential landlord and tenant relationship, mandatory standard lease agreement
160
true or false: within the RTA, a landlord can tell you pets are illegal
false
exception: if it’s a condo and the condo corporation says no pets
161
purpose of the RTA
to protect tenant rights, preventing unlawful rent increase or eviction
162
responsibilities of landlord:
providing maintaining unit in good state for to live in, complying with health safety and maintenance standards
can’t change locks
can’t interfere with reasonable use of unit
cannot harris threaten or interfere with tenant
can’t withhold supply of vital services
163
responsibilities of tenants:
keeping unit reasonably clean
repairing damage caused by neglect or misconduct
can’t change locks
can’t interfere or harass landlord
164
termination of lease for tenant: you generally cannot terminate a lease early unless:
both landlord and tenant agree too
tenant has experienced violence
if landlord tenant board (LTB) has issued an order for termination
165
when would the LTB issue termination?
if the landlord has violated any of their listed responsibilities
166
termination of lease, landlord:
not paying rent
misrepresentation of income
illegal acts
causing damage
distributing or interfering with tenants or landlord
having too many people in the unit (to an extreme level)
all of these have to be confirmed and justified
167
true or false: landlords can issue eviction as soon as you don’t pay or violate a step
false, LTB still has to agree whether its from the landlords or tenants perspective
168
termination of lease landlord: no fault reasons
landlord is planning major repairs which can’t be done unless the unit is empty
member of landlords immediate family or caregiver is moving into unit
landlord has sold property
169
finders keepers: the law of finders:
if you lose something, whoever finds it gets rightful ownership of it EXCEPT for its original owner
170
law of finders; if item is found in a public place, the rights go to
whoever found it
171
law of finders; if item is found in a private place, the rights go to
the owner of the private place
172
true or false: the finder has obligation to return found goods to the proper owner when it is possible to do so (or at least try to)
true
173
formation by estoppel
if the third party relies on the principles representation that the agent has authority to act, then the principle cannot claim the agent had no authority
reasonable person test
174
Formation by Ratification
an agent acts without prior aurhority, but the principle confirms or adopts the action making it legally binding
ex. employee signing a contract on behalf of their company without being authorized to do so
175
formation by necessity
authority given by urgent reason, more rare now with cellphones and internet
176
fiduciary duty
Mcs3040
flashcards
Decks in class (3)
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