LAW 101 Final Exam PDF

Module 8: Torts Tort (‘twisted’, ‘wrongful act’) -​ A type of civil wrong for which the person wronged can obtain damages or some other form of remedy -​ Ex. someone hits you on purpose, someone drives reckless and hits your car What/who does tort law apply to? -​ Everything and...

Module 8: Torts Tort (‘twisted’, ‘wrongful act’) -​ A type of civil wrong for which the person wronged can obtain damages or some other form of remedy -​ Ex. someone hits you on purpose, someone drives reckless and hits your car What/who does tort law apply to? -​ Everything and everyone -​ Purpose is to shift a loss suffered by a plaintiff (person harmed) to the defendant (person accused to be at fault) Goals of tort law 1.​ Compensation- aims to compensate losses resulting from the wrongful conduct of another person 2.​ Deterrence- aims to deter ppl from committing torts 3.​ Psychological comfort- aims to provide psychological comfort for the injured Tort compensations -​ Almost always compensated w/ 1.​ money (‘damages’) -​ Intended to put plaintiff back in the state they were in before the defendant harmed them -​ Damages based on.. a.​ Dollar value of the loss incurred by the plaintiff b.​ Cost of fixing the damage done by the tort because of defendant c.​ Lost earnings, past and future, that plaintiff lost or could have made in their lifetime d.​ Pain and suffering experienced by plaintiff e.​ Punitive damages- money damages awarded to punish the defendant, rather than compensate plaintiff 2.​ injunction -​ Court order to tell someone to stop doing what they're doing -​ Used when monetary value is not enough to compensate the wrongdoing How is tort law different from other types of law? -​ In torts, duties are owed to ppl generally, not to specific ppl (like parties in a contract) Tort law Criminal law 1.​ Entity affected brings upon case 1.​ State brings upon case 1.​ Has the private goal to compensate the 2.​ Has the public goal to hold defendant harmed plaintiff accountable to society for its crime against society 3.​ Balance of probability and standard of 3. No reasonable doubt standard proof required Types of tort law 1.​ Intentional torts 2.​ Negligence 3.​ Strict liability torts Intentional torts -​ Intentional torts are intentional interferences with interests that the law protects (generally, a person's body or property) -​ Plaintiff doesn’t have to show actual damage- i.e broken leg Battery: direct, intentional, and harmful or offensive physical contact -​ Elements of battery -​ Direct: if it is the immediate consequences of a force set in motion by an act of defendant Ex. raising hand and slabbing someone, using a baseball bat to hit someone -​ Intentional: defendant wants the results or knows the results are likely to occur (this does not mean “what was the motive”) Ex. pulling chair out from under someone causing them to fall -​ Harmful or offensive: Harmful = the physical harm Offensive = all contact outside the exceptional category of contact that is generally accepted in the course of ordinary life is on its face offensive (doesn’t have to result in physical harm) -​ Examples -​ Ex. punching someone is battery bc… Its contact is physical It is the result of swinging a hand towards a person It is intentional bc chances of hitting someone is likely It is offensive since it is not generally accepted in the course of ordinary life -​ Ex. cutting someone's hair Physical contact is direct It is the result of putting scissors towards hair It is intentional bc result of cutting hair is likely to occur It is offensive bc it is not generally accepted in the course of ordinary life -​ Defences -​ Consent can be express (written) or implied (participating in the activity) -​ Consent must be voluntary- it cannot be obtained by force, threat of force, or be given under the influence of drugs or due to deceit as to the nature of conduct Malette v Shulman (ONCA, 1990) -​ Plaintiff carried card saying she rejects blood transfusions as a matter of religious beliefs -​ In life threatening state, defendant (Dr.) administered transfusion as part of standard medical procedure which saved plaintiffs life -​ Court concluded that this constituted as battery -​ It was direct, intentional, and offensive physical contact that plaintiff did not give consent to Negligence torts -​ You are negligent when you create an unreasonable risk towards a person to whom you owed a duty (duty of care), which caused them damage that you should have foreseen (reasonable person would have acted differently) -​ Duty of care: the concept concerns the persons who may be considered within a risk created by the defendant's conduct. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour -​ Neighbour: person who is so closely and directly affected by my act that that is called into question (ex. Dr. to patient, driver to pedestrian) Dobson v Dobson -​ Defendant (mother) sued by plaintiff (child) who suffered mentally from being born premature as a result of a car accident (by negligent driving) -​ Court found it reasonably foreseeable -​ However, duty of care of a mother to a fetus should not be recognized as it would impose psychological burdens on pregnant women Standard of care -​ If a duty of care is established, there is a ‘standard of care’ a defendant must observe -​ Therefore, conduct that falls below a certain standard of care, leading to a breach of duty of care, may be considered negligent -​ Standard is objective: what a reasonable person would do Causation in fact -​ Asks whether a defendant's wrongful act produced the the plaintiff's injury- this is a factual Q determined by evidence -​ Basic test, ‘but for’ → whether P’s injury would have occurred ‘but for’ D’s act (if the injury would have occurred anyways) no causation = no negligence Causation in law -​ Question whether the damage is too ‘remote’ (for defendants conduct to be considered negligence) -​ Ex. Mustapha v Culligan of Canada Ltd -​ Plaintiff sued for depressive disorder that developed by seeing flies in bottle of water supplied by defendant manufacturer -​ Defendant needed to owe duty of care -​ However, court found injury too remote to be defendants fault → it was not reasonably foreseeable Strict liability torts -​ A strict liability tort is a legal concept that holds a defendant responsible for a tort, or injury, to another party, regardless of whether the defendant intended to cause harm Vicarious liability -​ Describes the responsibility the one person may have for the torts of another because of the relationship between them -​ Requires no proof of wrongdoing by the defendant, but the plaintiff must show a relationship between defendant + person who committed the tort -​ It provides plaintiff with an alternative liability who is more likely to have insurance to be sued  -​ Ex. employer - employee relationship -​ If employee harms someone, employer may be vicariously liable for the harm done Rationale -​ Even though the employee rather than the employer has caused damage, the employer should bear the responsibility for the damage bc the employers enterprise has put the risk into the community -​ Ex. the club hires a guard, that guard hits someone. The law considers the club the enterprise that created the risk of someone being physically hurt Module 9: Contracts -​ Tort and contract law: create rights in personam -​ Property law: creates rights in rem (rights good against the world) Contract -​ Any agreement between two or more parties, enforceable by law (meaning if one side does not live up to the agreement, other side can go to court for assistance) -​ Ex. taking public transit, buying a pop from 7/11, hiring a taxi, getting a haircut, gym membership.. When is an agreement a contract? 1.​ Offer -​ One side proposes something -​ Doesn’t need to be a piece of paper 2.​ Acceptance -​ If the other side agrees, then that is the agreement that binds both sides 3.​ Consideration -​ The ‘price’ of the agreement -​ Party making the promise has to receive some benefit OR party being promised something has to ‘suffer some detriment’ Contractual weaknesses 1.​ Ambiguity -​ Unclear terms of the contract -​ There should be a ‘meeting of the minds’ with clear, simple terms to understand conditions 2.​ Objective vs Subjective perspectives -​ To understand what the parties meant, we look at what they say and how they act (we can't assume what they're thinking) Types of contracts 1.​ Unilateral contracts -​ Offerfor says: if you do this, i will pay you -​ Acceptance is only by done by the action of doing something -​ Ex. reward posters 2.​ Bilateral contracts -​ Both sides promise to do something  -​ Once both sides promise, it is binding on both parties -​ Ex. someone offers to sell me their car for $20,000, i accept and say i'll buy it for $20,000 3.​ Individualized contracts -​ Both sides negotiate the details of the contract (both sides have input) -​ Ex. calling a plumber, and working out a price to fix two things 4.​ Standard form contracts -​ One side drafted the agreement, and the other side simply signs it (not much negotiation) -​ Ex. car rental agreements Breach and remedies -​ If one side does not perform what it promised, they have breached the contract -​ This ‘non-compliant party’ can be taken to court, and other party can seek damages or specific performance Damages for breach -​ When one side does not perform, this can harm the other side -​ Other side can ask for payment (damages) equal to the harm caused -​ Must ‘mitigate’ damages before claiming (show effort you tried mitigating your damages) Specific performance -​ Sometimes money can't fix the issue -​ Specific performance is a remedy that requires the other party to follow through with their half of the contract -​ Ex. the seller says they’ll sell a painting and they don't. ‘Specific performance’ can seek the court to enforce the contract, not ask for money Property law -​ Open access: no one is excluded -​ Private property: everyone but the owner is excluded -​ Public property: the state owns the resources and regulates access to it -​ Shared property: the owner regulates access to the resource Property rights 1.​ Right to exclude 2.​ Right of possession 3.​ Right to use and enjoy 4.​ Right to transfer 5.​ Right to income or revenue Rights in land -​ Crown holds all rights to land -​ All water is property of the crown, as well as the shoreline -​ ‘Tenure’ is the right to hold the land of the crown -​ ‘Estate’ refers to the duration of the tenure -​ ‘Tenant in fee simple’ is a person who the land, potentially forever  Module 10: Family law Who makes the laws about creating and ending relationships? -​ Canada: overall rights around marriage and divorce -​ Provinces: how to get married, property, common-law relationships Common law in AB -​ Adult Interdependent Partners (AIPs) -​ Persons become an AIP if they lived together in a “relationship of interdependence” for: -​ 3 yrs OR they have a child OR they enter into an AIP agreement Framework for AIP -​ A relationship of interdependence is a relationship outside of marriage in which any 2 persons a.​ Share one another's lives b.​ Are emotionally committed to each other c.​ Function as an economic and domestic unit -​ ex. Conjugal relationship, exclusivity, financial interdependence, contributes to each other's well being…. -​ Not all factors need to be established, just some How AIP relationships ends -​ Written agreement -​ Live separate and apart for more than one year, and at least one intends that the relationship ends -​ Gets married to each other -​ One gets married or enters AIP agreement with someone else -​ Obtain a court order called a declaration of irreconcilability Divorce Act in Canada -​ Grounds for divorce requires one person's signature to prove 1 out of the 3 grants 1.​ Adultery 2.​ Physical or mental cruelty 3.​ Separation for one year, “no fault divorce”(most common) Property in family law 1.​ Exempt property (not divided) a.​ Gifts b.​ Inheritances c.​ Property acquired before the marriage and/or “relationship of interdependence”began d.​ And, anything traceable from these things -​ Ex. you were given a bracelet as a child, you trade that bracelet for a necklace at a pawn shop… that necklace is traceable exempt property 2.​ Distributable property (just and equitable) a.​ Increase in value in exempt property b.​ Property purchased from income from exempt property c.​ Property acquired after separation  -​ ‘Just and equitable’ factors -​ Look at factors such as…. -​ Contribution to the family and property -​ Income, earning capacity, liabilities… -​ Length of marriage/relationship -​ Oral and written agreements -​ Any relevant facts or circumstances… -​ Recognizes working and stay at home partners being contributors 3.​ Divisible property (split 50/50) -​ Everything else Children in family law -​ Court should take into consideration only the best interests of the child 1.​ Decision-making responsibilities -​ Day to day decisions -​ Where to live -​ Education -​ Religion -​ Cultural heritage -​ Medical 2.​ Parenting time -​ Scenarios that might warrant a different schedule than week-on, week-off -​ High conflict -​ location/mobility/practicality -​ Serious parenting problems (ex. abuse) -​ An agreement Child support 1.​ ‘Base’ or ‘table’ or ‘s. 3’ support -​ Covers basic expenses: housing, clothes, food… -​ Monthly payment 2.​ ‘Extraordinary expenses’ or ‘s. 7’ support -​ Covers child care, medical/dental, extracurricular, school expenses… Section 3 support 1.​ Primary parenting (60/40) -​ Parent entitled to child support from other parent if: -​ They have child for more than 60% of the time -​ Payor’s pay is calculated by their income, the number of children + province they live in 2.​ Shared parenting (50/50) -​ Pay calculated to ensure that children have the same quality of life in both homes Spousal support -​ Recognizes economic advantages/disadvantages either party experienced due to the relationship breakdown -​ Apportions financial consequences arising from the care of children during the relationship -​ Relieves economic hardship due to relationship breakdown  -​ Promotes economic self sufficiency (until person works their way up to making decent money) Factors to consider eligibility of spousal support 1.​ Length of cohabitation 2.​ Functions of each party 3.​ Any order or agreements Alternative Dispute Resolution Options (ADR) 1.​ Kitchen agreement -​ Come to agreement on own for child support, property division, and further factors 2.​ Mediation -​ Trained mediator guides parties through their decisions, helping them reach a consensus, and then drafts a decision they can take to their lawyer -​ Mediator can give legal info, but not legal advice 3.​ Lawyer-led negotiation 4.​ Collaborative family law -​ Both lawyers certified in collaborative law, as they work through a 4 way meeting with the goal to work together outside of the court -​ Lawyers and parties sign a contract stating that if anyone decides to go to court, everyone must start over with new lawyers (puts hurdle in place to prevent going to court) Module 11: Corporate law 3 forms for operating a business 1.​ Sole proprietorship -​ The person IS the business -​ Profits taxed as personal income -​ Personal liability for debts and liabilities of the business -​ Easy to start up… may need a trade name, licenses… 2.​ Partnership -​ Two or more people working together to make a profit -​ Profits taxes as personal income -​ Personal liability for debts and liabilities of the business -​ Easy to start up… file a declaration of partnership, may need to negotiate partnership agreements 3.​ Corporation -​ The incorporated business is a separate legal entity -​ Profits taxed separately from personal income of the people involved -​ Limited liability… corporation creditors can’t go after personal property of ppl who own or run the business (protects ppl involved from personal liability) -​ Moderate effort to start up… have to go through a corporation process 3 categories of people who compromise a corporation 1.​ Shareholders -​ Share the profits of the corporation (dividends) -​ Share the residual value of the corporation -​ To vote when shareholders are making decisions 2.​ Directors 3.​ Officers 3 categories of people who compromise a cooperative 1.​ Members 2.​ Directors 3.​ Officers Corporation Cooperative Purpose To produce wealth for the To fulfill the members shared stakeholders needs Profits Based on shareholdings Based on amount of business with cooperative Residual claim To shareholders Depends. Sometimes to shareholders, sometimes to cooperative Voting 1 vote per share 1 vote per member Fiduciary obligation -​ A fiduciary is an individual who stands in position of trust to another person -​ Fiduciaries put the person's interest ahead of their own -​ Ex. lawyer → client, doctor → patient, director → corporation Theories of fiduciary obligation 1.​ Shareholder primacy -​ Whatever produces the most wealth for the shareholders 2.​ Stakeholder theory -​ The best interest of the corporation can be determined having regard to the interest of multiple stakeholders  Module 12: Environmental law Environmental law -​ Born out of The Environmental Movement when society expressed concern about the rate of resource use, plants and animals going extinct, and pollution levels -​ Sets limits on pollution, environmental damage, seeks protection for plants, animals + ecosystems -​ Environmental law is influenced by… science, politics, ethics -​ However, economic + social objectives often trump environmental goals, as science is often compromised by politics Environmental jurisdiction 1.​ Federal areas of authority -​ Fisheries -​ Navigation using waterways and interprovincial and international shipping -​ Inter-provincial and international trade and commerce -​ Criminal law, including the power the pass environmental laws and regulate toxic substances -​ Power to regulate emergencies or issues concerning all of Canada 2.​ Provincial areas of authority -​ Property and civil rights, including businesses and industry -​ Matters of local or private nature -​ Mines and minerals, non-renewable natural resources, forestry, and production of electrical energy -​ Municipalities Ex. climate change -​ Federal law has set a price on carbon dioxide pollution -​ Provincial law is phasing out coal combustion Regulating pollution -​ Environmental regulation is… -​ Permissive (pollution is rarely banned) -​ Layered (there's layers of regulation) -​ Complete (there's proposals, operations, enforcement and compliances) 1.​ Proposed polluting activity -​ Environmental assessments; prov + fed laws review proposed assessments on how it will contribute to society and what social costs are -​ Approval depends on whether the project is in the ‘public's interest’ (do benefits outweigh harms?) 2.​ Operation of the polluting activity -​ Polluting activities must hold provincial authorization under the Environmental Protection and Enhancement Act -​ Pollution must comply with federal restrictions under the Canadian Environmental Protection Act 1999 3.​ Compliance and enforcement -​ Compliance: maintaining conformity with the law -​ Enforcement: compelling offenders to comply with the law or punishing them when they don't Forms of climate change laws 1.​ Climate change mitigation -​ reducing/slowing climate change 2.​ Climate change adaptation -​ Responding to the impact of climate change Module 13: IHRL IHRL -​ Aims to provide global legal protection for the rights that we have because we are human -​ Broad field, lay down obligations for states and governments to protect, respect, and fulfill basic fundamental rights International law -​ The law among states (not the same as Canadian law), established by states -​ Main players: states (represented by governments) -​ There is no central law-making authority -​ No central enforcement authority -​ Most disputes solved by diplomacy and negotiation, not courts Universal Declaration of Human Rights, 1948 -​ In 1948 the UN General Assembly endorsed the “Universal Declaration of Human Rights” which established basic standards for the world -​ It is not a legally binding text, but an important source of policy and inspiration on treaties and national constitutions International Covenant on Civil and Political Rights -​ One of the most important international human rights treaties -​ Adopted in 1966, the ICCPR entered into force in 1976 -​ It has been ratified by 173 states throughout the world -​ It extends protection to rights such as the right to life, the right to liberty, the right to be free from torture and ill-treatment, the right to a fair trial, the right to equality, the right to vote, and the right ot found a family -​ The rights and freedoms protected by the ICCPR are often described as negative rights -​ ICCPR imposes and immediate obligation on states to respect and ensure rights to all individuals within a territory -​ Most ICCPR rights focus on individual