Comm 315 Midterm Notes PDF

CH 1: Intro to Law Definition of Law: Rules that shape society -> govern how we act Enforce certain behaviors It reflects who we are Providing regulations to maintain order: Certainty for the future planning and security of property ○ (Ex: Freezing interest rates for mortgage, Employment contracts for a fixed time) Origins: Customs and traditions defined ○ Leaders/hierarchy Complex laws developed over time: ○ Law is reactionary Reactionary to what happens in society ○ Bigger population/Immigration -> More interactions -> More chances for conflict ○ Tech advances -> privacy/data issues/AI Law Today: Ensuring Security Enforcing Standards of conduct Maintain Status Quo ○ Without Status Quo => Creates chaos Law = Justice? Not always ○ The law is written -> Rigid -> the law is the law ○ Enforced by judges -> Judge has discretion on how law is applied (good or bad) ○ Laws are decided upon a majority -> made for the needs of the majority Ethics Set of values that we believe in, distinguishing right from wrong Can business and ethics work together? No Opposite goals: ○ Making profit for the company vs better human values Ethics are applied to found and mold laws Ethics are used to further develop laws ○ Eg: property ownership of a picture Before: It’s just a picture Currently: Can ruin your life ○ Ethical value: The essense of sending a picture should be private, not to harm the other party Ethical value becomes law when: ○ Gains a large consensus ○ A serious threat to the well being of the community Domains of Law Private Law: Impact between individuals Public Law: Impact on the public Civil Law: Courts are not supposed to make law, just apply it France Common Law: England Canada has both common and civil laws, depends on a lot of stuff Decisions in the court set precedence ○ Past cases create law for the future ○ Can be cited and referenced (jurisprudence) 👍 Ex: chicken got stolen a month ago -> compensate me for the value of the chicken and loss revenue Ex: wagon got broken -> compensate for broken property (value) and loss of revenue ○ Judge can strike it down (between states and courts) Substantive Law: The content of the law Adjective Law: Instructions on how to apply it ○ What do u do ○ How u do it WHY SUE Cuz they owe us something (property,money,service or obligation) WHEN CAN YOU SUE: When you FIND out abt dmgs Convince the judge you are more right than the other person Civil law/private case: balance of probabilities 50% + 1 Criminal cases: 100% When you go to court: You ask compensation starting when you’re in front of the judge Who are the parties? Plaintiff and Defendants Where do u sue? The Court of the place where: 1. the defendant lives 2. the defendant has property 3. the cause took place 4. the contract was finalized 5. the property in dispute is situated When can you sue? The moment you’re aware of the damages Prescription/Statute of limitation After a certain time, you lose your right to sue Testimonies might change if taken too long to address Overtime evidence becomes shit Some other examples (time to sue): 1. Municipality for civil liability (6 months) 2. Unpaid salary (1 year for 6month of salary) 3. Libel / slander (3years) 4. Execution of judgement (10 years to collect) 5. Personal injury or damage to property (3years)*** 6. That's not my baby (2years) Default is 10y but usually is 3y 3 Elements of the legal system: Legislative mechanism Laws Administration and enforcement of laws CH2 Canadian & Quebec Legal system Sovereignty & Authority to Enact Law The authority is granted to elected representatives Constitution Act, 1982 (BNA Act) Federal (s.91) and provincial (s.92) governments Fed gov has the power to make national laws Laws over postal office Laws over military defence Etc Also have Residual Powers Clause (If not purely local issue, then it's fed) Ex: uranium as a resource but it’s a national issue Provincial has the power tao make smaller laws Hospitals (8) Municipal Institutions (9) Shop, Saloon, Tavern, Auctioneer, and other Licences (13) Property and Civil Rights in the Province. (16) Generally all Matters of a merely local or private Nature in the Legislative Process: Making laws -> the cabinet introduces em The rest can stand up for a motion/idea for a law. Bill first then becomes a law ○ Takes hecking long -> 3 votes 2 commities Legislature goes through house of commons Goes through the senate King/Governor general (Last one signs) 2nd element - where do they come from? Six sources of law that develop or restrict new laws 1. Constitution - Supreme law at the top a. Sections 91 and 92 of the Constitution Act, 1867 (Parliamentary Supremacy) i. The Charter of rights was missing - they could’ve made any law they wanted to. b. The Constitution Act, 1982 (Constitutional Supremacy) i. Constitution were the top law, judges were the referees to make sure the rights were heard ii. We got our monarchy c. Section 52 “the supreme law of Canada” 2. Statutes -> law that gov has decided on 3. Jurisprudence a. Doctrine of Stare Decisis: “let the decision stand” -> decision by higher courts, the lower ones need to respect it b. Who can change precedence? i. Supreme court ii. The Government c. Judicial activism -> judges do make laws following the supreme court 4. Doctrine a. Written commentaries on the law 5. Custom a. A tradition or usage accepted by a community -> can argue as law i. Dairy farmer buying a bull only to have it procreate b. Accepted by court provided no conflict with existing statute c. Can be made into statute 6. Administrative Laws a. Made a law to give smaller bodies the power to make laws (CSST, SAQ, etc) The third element - Administration and Enforcement P.23 in book 2 courts Municipal Court : Municipal by-laws (traffic, zoning,etc) Minor criminal matters ○ Less than 1k Small Claims Court: Faster overall and anyone can sue Takes about 1 year to see judge No lawyers Cases no more than $15000, higher and it goes to court of QC Business must be represented by an employee Employee can be a lawyer Not available to businesses with more than 10 employees Creditor can reduce debt to sue at this level (forfeits remaining debt) No appeals The court of Quebec: (numbers have changed recently) All cases up to $85 000 (new 75k) Except alimentary pension(ex: support in a divorce case) and Federal cases -> EXCEPTIONS Appeals to Quebec Court of Appeal No appeals for cases under $60 000 ○ Vague law? Can be appealed Superior Court Hears stuff for class action lawsuit Can hear criminal cases Court of first instance (Hear only new cases, no appeal cases) All cases over $85 000 All cases not assigned to other courts ONLY JUDGES for superior, qc, small claim, municipal NO JURY^^^^^ Court of Appeal 7 Judges (3, 5 or 7 will hear a case) Decisions based on majority present Can argue error of law or error of fact Apply for leave (permission) to be heard Lose your case? File a claim for 3 reasons: Can argue error of law (judge made a mistake Csn use error of facts (the evidence used was bad) Apply for permission ( the law is too vague) Results 1. Lower court decision stands (Uphold) 2. They can overturn the decision 3. Send it back to lower court for re-trial (diff judge) Supreme Court Judges are select by the PM Pick case -> usually has national interest 9 Judges (3, 5,7 or 9) 3 from Quebec - civil system Error of Law or Error of Fact With leave (permission) Tribunals: (Mini courts) Administrative Tribunal (Boards): Enacted by administrative regulations Person appointed to act as “Judge” Internal review mechanism of Administrative decisions No appeals usually The Legal Profession 1. Judges Selected by government The court system is adversarial not inquisitive, except Small Claims Court ○ NOT supposed to get involved in the case, more like referee ○ Small claims court, the judge might be more involved Supreme court -> either you’re good or nepotism Court of QC -> apply 2. Lawyers Must be Member of the Quebec Bar ○ Law school + internship ○ National program = 4 years + bar + internship = 5ish years 3. Notaries Can’t represent in court Exclusive right to prepare certain contracts Does work the lawyers don’t do Produce authentic documents, which “make proof of their own contents” ○ Fool proof docs ○ Ex: succession wills => need to prove the legitimacy vs a notary signs it? Iss good and start the procedures 4. Mediators / Arbitrators Can’t represent in court Objective third party Mediatior: A 3rd person who tries to get both sides to an agreement Makes suggestions but no enforcement power Arbitrator: Final decision is binding, will be the law CH 3: Personal rights Democracy has challenges due to: 1. Diverging opinions on issues with majority rule over minorities 2. Trying to balance individual rights with societal objectives Charters and personal rights legislation aim to keep a balance between individual rights and societal objectives Ex: Forcing ppl to wear masks The Canadian charter of Rights and Freedoms None of the rights are absolute Your rights stop becoming a right once it infringes the law Entrenched Rights The Constitution Act, 1982, included the Canadian Charter of Rights and Freedoms The Charter was “entrenched” in the Constitution, thus rights protected To Change the constitution: 7 provinces need to agree 50% of the population needs to be in the border =>It’s really hard to change almost impossible Application Government must respect the Charter (Section 32(1)) But can use against other individuals => To protect you against the government Which government? 1. Federal 2. Provincial 3. Municipal 4. Any government associated organization and employee But violations between private individuals are not protected Protected Rights 1. Fundamental Freedoms (s.2) Freedom of religion, thought, expression, association ○ Must respect the basic quality of man and women 2. Democratic Rights (s.3 - 5) Right to vote and run for office Has regulations 3. Mobility Rights (s.6) Freedom to travel and work anywhere in Canada Also a right to work and profit anywhere 4. Legal Rights (s.7 - 14) Right to life, liberty, security and judicial protections ○ Innocent till proven guilty 5. Equality Rights (s.15) Protection from discrimination ○ Discrimination: Using something about you and using it against you 3 Conditions (Law v. Canada 1999) Non-exhaustive list Affirmative action: women and minorities get better and equal opportunities through this program to get job ○ Amelioration of conditions: making a law to make better conditions Limitations 1. The Notwithstanding Clause (s. 33) -> taking away the rights (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or ofthe legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. => they can make a law that can violate your rights and it will stand anyways Government can limit rights found in s.2 and s.7 – 15. Must renew every five years (sunset clause) 2. The Oakes Test (s.1) The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society ○ We are democracy, not everyone can be happy so if a gov does that, they can take away your laws only if it’s justifiable, and serious enough -> proving why the law violating your rights should exist Ex: you get pulled over and u have to blow in breathalizer machine -> guilty until proven You fight this, but: 1. Drivinking and driving is serious 2. Just blowing in the breathalizer is reasonable Ex: driving while high, you get your bood tested for % of weed -> guilty until proven You fight this: 1. It’s as serious 2. BUT NOT REASONABLE as it’s intrusive -> taking blood Quebec Charter of Human Rights and Freedoms What is the difference between the two Charters? 1. Quebec Charter can also be used for violations between private individuals (ex: vs walmart) 2. Quebec Charter not entrenched in a Constitution so easier to change Fundamental Freedoms and Rights (s.1 – 9) S.1 Right to life and security (Call 911 at the very least) S.2 Right to assistance ○ Except for fear or other valid reason S.3 Freedom of expression, opinion and religion, right to associate ○ Not absolute S.4-6 Safeguard of dignity and privacy ○ Respect them Protected Rights Privacy? Very little Is this legal? WHEN: 3 Conditions 1. They ask your permission and you accept 2. If the person is a public figure (celeb,politician,etc) 3. Newsworthy event (halloween, st pattys, a protest) -> no privacy 2. Protection from Discrimination (s.10 – 20.1) S.10 Discrimination defined as: An act that nullifies or impairs a right But, only rights listed are protected A lot “depends” S.13 Discriminatory clauses in contracts are void E.g you don’t bring your kids when visiting a contract for lease. You bring them after and the landlord tries to kick u out cuz they have a no kids rule. You bring up section 10 “no discrimination on age, etc”. You win S.14 Discretion for room leases if one room in home and not advertised 2. Protection from Discrimination (s.10 – 20.1) S.15 Can’t deny access to public place Unless “undue hardship” proven ○ Only time you can limit on your property -> it would cause you undue hardship Security -> too many ppl may cause a dangerous situation Economic issue -> it would financially ruin us (ex: 1mil per station and 10 years to make metros handicap accessible) ○ To prove this, you have to show you tried to accommodate or provide solutions 2. Protection from Discrimination (s.10 – 20.1) S.18.1 No obligatory S. 10 questions in application forms and interviews, except if: Aptitude and qualification related (s.20) Based on affirmative action program ○ Finding a group of certain minorities 2. Protection from Discrimination (s.10 – 20.1) S.18.2 Can’t discriminate against job applicants due to past criminal record if: Not related to job Obtained a pardon Only time they can deny is relating to a job similar to the crime If you have a criminal record NOT relating to the job and another normal guy applying, they SHOULD be required to go w the most qualified 2. Protection from Discrimination (s.10 – 20.1) S.19 Equal pay for equal work, except if: Based on aptitudes and qualifications -> offering more value = more pay Based on pay equity plans ○ are you paying everyone the right amount? If not? Then Can say we have a program “X gets 20% more than guy” 2. Protection from Discrimination (s.10 – 20.1) S.20 Organization HAS discretion in hiring if: Based on aptitudes and qualifications ○ If you don’t get the job, you gotta prove it If a non-profit community or religious organization S.20.1 Insurance and retirement plans ALLOWS for discretion (based on statistics) E.g Twin siblings, same age and all, goes to insurance, -> the guy will pay more for insurance Enforcement Section 49 allows victims to sue for: 1. Injunction (cessation of violation) -> order to stop doing that 2. Material damages (property lost, lost salary, lost opportunity) 3. Moral damages (if that defamation undermines your dignity, you can get paid) a. E.g someone made u cry infront of everyone WAHHHHHHHH, 4. Punitive damages -> teach them a lesson by having them pay to the plaintiff Additional damages Conditions ○ Has to be a charter right violation ○ Have to have done it intentionally ○ They have not been found guilty for the same act (criminal record) If they have then there will be 2 cases, 1 civil and 1 criminal If they are found guilty for the criminal case, therefore, you CANNOT ask him for punitive damages cuz it’ll be double punishment Limitations Section 9.1 allows government to limit rights: 1. Set out in sections 1 to 9 2. Government has justify limits under Oakes Test principles CASES (STUDY THESE BY HEART) Multani vs. Commission scolaire Marguerite-Bourgeoys (freedom of religion and when can a school board limit your rights) MB: argues can’t carry a real one but can bring a wooden one Multani: argues rights are violated Courts agrees that the agreement between principal and parents Appeal court argues a kirpan is not safe -> security rights overrule religious rights Also argues the school boards have to be respected because it is a board with no appeal Parents when to supreme court: Administrative arguement was wrong, it made no sense, not relevant Looked at oakes test -> MB had to demonstrate that 1. It was a societal issue -> security 2. Limitation was reasonable? NO the agreement w the parents was actually good and reasonable -> never had an incident before and it does not pose a danger TEST FAILED. Court says: not possible to have the best perfect safe society to justify denying someones rights and if they allowed the kid to come with the kirpan secured and all it would’ve been ok Legal Issue: s.3 and 9.1 Que. Charter, s. 1 Cdn. Charter Case facts? Superior Court ○ Declaratory judgment allowing kirpan with conditions Court of Appeal ○ Religion neither unique nor capricious ○ But not absolute ○ Applied s.1 Canadian Charter and art. 9.1 Quebec Charter ○ Additionally stated Administrative Law ○ School board must educate but also ensure safety Supreme Court ○ Administrative law not relevant because violation of Charter ○ Appeal Court made mistake in applying reasonableness standard ○ Religious tolerance important Canadian value ○ Safety Facts + conditions = reasonable limits Syndicat Northcrest vs. Amselem (They wanted to install succah on the balcony, they argued against) Arguing balcony is a common area, even tho private use, therefore they cannot put stuff on it and can’t put religious stuff on it. -> Limiting religious rights Suggested building 1 succah for everyone Said security risk Legal Issue: s.3 and 9.1 Que. Charter Case facts? Setting up of succahs on balconies for 9 days Northcrest claimed danger and property values Northcrest proposed common succah Northcrest claimed signing building by-laws equal to waiving rights Supreme Court (5 vs. 4 judges) They were arguing 9.1 is open to private individuals also (norcrest should be able to use it to limits rights) Supreme court said NO. ONLY goverments should be able to limit rights -> norcress cannot limit anyones rights Only 1 succah -> not accommodating shit 9.1 DOES NOT apply because norcrest was not governemnt To give away a right, it has to be clear written on the paper -> this was NOT clear R. v. Kapp Legal Issue: s. 15(2) Cdn. Charter “ amelioration of conditions” 3 aboriginal bands were fishing and the community living by the river could use it for 24Hrs Commercial fishermen claimed reverse discrimination Case facts? Communal fishing license to three aboriginal bands Exclusive right to fish for 24 hours in the Fraser River Appellants argued discrimination under s.15 Govs can make laws and program to help ameliorate conditions Decision? Not every distinction is discriminatory -> Programs designed to ameliorate the disadvantaged doesn’t mean reverse discrimination Therrien vs. The Minister of Justice (Mans helped his friends, criminals, became a lawer, got a pardon and applied to be a judge but was refused until he ticked off) Legal Issue: s.18.1 and 18.2 Que. Charter Case facts? 1970 Therrien sentenced to one year in prison for assisting four FLQ members Practiced law between 1976 and 1996 Pardoned in 1987 Tried 5 times between 1989 – 1996 to be appointed judge Appointed judge in 1996 (did not reveal) Record discovered and removal process started Therrien argued violation of s. 18.1 and 18.2 -> should be able to get a job even if they have a criminal record Court found s. 18.1 not valid because criminal record not in s. 10 list Court found 18.2 not valid because even though he has a pardon, of “the nature, characteristics and requirements of the office.” -> judge has to be impartial and objective Court also found non-discrimination via s. 20 -> not qualified Firefighter case: British Columbia vs. BCGSEU Legal Issue: s.20 Que. Charter Case facts? Seven years ago Meiorin was hired BC forest firefighter Was fired three years later due to new fitness tests She passed three of the tests but failed the run by 49.4 seconds The issue: aerobic standard and discrimination Female firefighter was working there No one died but ppl got hurt Gov looking into who should be a firefighter -> made a 4 part test Everyone that was working or wants to apply has to pass all 4 parts She failed cardio test so she got fired Supreme court: Makes a new test -> BFOR (basically oakes test but for employment) Everytime you place a condition for work, is it discriminatory? Step 1: Is the standard rationally connected to the job performance -> was it justifiable? Step 2: Was it adopted in good faith Step 3: Demonstrate the standard is reasonably necessary -> did it go to far? Undue hardship The gov said 1. Its important because saving lives 2. No the gov didn’t do it to discriminate against women, no bad faith, meant to save ppl 3. Firefighters argued undue hardship, -> that person is underqualified The court looked at the history and 60% of women failed and 30% men failed. -> no women would ever qualify -> men are built different Justify against all women? NO, Supreme court agreed with the union that we should not be discriminating for the perfect person and they need to be more reasonable when applying standards. Different standards should be tested for men and women. She won and the tests are adjusted to be more reasonable MIDTERM: 1. Scenarios and who is right/wrong -> think of all legal possibilities -> find the best answer 2. Theoretical: e.g “which of the following is not a reason does not equal justice” -> very straightfoward WHAT TO STUDY I GOT WRONG LOOK UP 6 sources of law Jusripudence Doctrine Legislation Constitution Statute Traditions Prescription/ statute of limitation -> when you sue someone HOW MUCH TIME YOU GOT Court of quebec -> exceptions Familial affairs concerning child support Federal incidents Administrative tribunals 3 punitive dmg conditions Cannot have a previous criminal record in a related case Violated the charter Done with intent Substantive and adjective -> whats in it and how to apply it

Comm 315 Midterm Notes PDF

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