Term 2 Test PDF

Term 2 test Main sources of law Connections between sources of law and the outcomes Socio-cultural, political economic implications A history of present The roots of common law system Circa 1100s developed via the appointed judges to manage conflict amongst the king's subjects...

Term 2 test Main sources of law Connections between sources of law and the outcomes Socio-cultural, political economic implications A history of present The roots of common law system Circa 1100s developed via the appointed judges to manage conflict amongst the king's subjects via circuit ○ With little guidance through written law Decisions made according to local customs, traditions, religious values, fairness ○ They didn’t make law; simply enforced the rules that became conventions over time ○ Custom = legitimacy As a result of growing number of cases, the practice of recording decisions and referencing them to inform cases also grew ( stare decisis- precedent) ○ from this a body of civil and criminal law emerged Judicial interpretations of CL system Recall, no hierarchy of courts like we see today Decisions were not binding- binding principle Cases were assembled based on likeness and common custom or experience ○ This is what gave them authority Question Were cases represented as their own respective sources of law or as illustration of local custom and rules? Bleeding into another sub question – Is common law, law if not common? Traditional sources – customary law (CL) method Sources of law went beyond the judiciary Sourced in local experience ○ System built upon shared understanding of experience within socio-cultural content of common everyday customs Result produced a lack of uniformity because of reliance on morality of the people -> formal structure The rise of stare decisis In what ways was Canada receptive to this new paradigm shift October 3rd 2024 Growing pursuit of a rational legal system ○ Because of rise in recognition of human rationality Judges not to make law; engage legal rationale ○ Judge merits of case according to substantive law (laws against a prohibited act) Distinguishing a case Effect: divorce from custom  ○ Right of action invoked; appeal courts established ; case recorded Part 2: Respective powers and complexities Main sources of law 1. The constitution 2. Statues/act 3. Judge made law - Precedent The constitution of Canada (royal Assent 1982) The constitution (1982) Legal doc: major impact on criminal law Outline rules of governance Division of power ○ Scope and mechanism The charter of rights and freedoms (1982) Embedded in constitution Prediction on equality, freedom, democracy Outlines rights of citizens and protection again unjust laws Protects fundamental freedoms ○ e.g., the freedom of mobility expression ○ Guarantees equality and protection against hate crimes, violent acts Basic principle That government can and should be legally limited in its power ○ Avoid overreach (e.g., emergencies acts, firearms, carbon tax) Authority of the state depends on it observing these limitations Constitutionalism is supreme law That necessitates a purposive interpretation of laws by court ○ I.e., generous interpretation and muti-factoral Purposive vs legalistic Entrenchment of constitution Rules imposing limits upon government power must be entrenched, either by law or by constitutional convention Principle of Writtenness (e.g., charter of rights and freedoms Unwritten (element) constitution through precedent and cultural customs of a nation (e.g., the role and influence of the prime minster in Canada) Judicial review: unwritten constitution, implied power and judicial deference The most important power of the supreme court, that of judicial review ○ Declare laws unfair, unreasonable, unlawful ○ Check and balance on the laws passed by the administrative branch of government A law will be judge based on: ○ Error in jurisdiction, error in fact, error in procedural fairness  ○ Ex. Unfair denial of immigration application by IRCC Judicial review & judicial discretion Ratio- "moot"; order no longer in effect, no "live controversy." Courts deployed judicial discretion not hear the appeal, quelling the "public interest" argument Results: no checks and balances, draconian laws, unjust, violation of charter, politics(?) Are there any limitation to our charter rights? Section 1 & 33 Section 1 – reasonable limits clause & section 33 notwithstanding clause Section 1 – limits can places on our rights and freedom with the limitation can be demonstrably justified in a free and democratic society" ○ Ex. Freedom of expression and hate laws. Child pornography Section 33- government overrides charter in best interest of society ○ Ex. Creating legislation that would make it illegal to strike (4k/day penalty) Concerns regarding section 33 Its overuse defeats the entrenchment of charter ○ Is the will of the majority sufficient to justify state use? ○ Is it a protective tool for the people or tool for the government? Orthodox position – only used in exceptional cases ○ Positioned as a threat for over 30 years until recently Minority rights, back to work legislation, 3rd party election, advertising and religious symbols (bill C 21) October 8th 2024 Living tree argument Perspective of legal establishment-charter as living tree to reflect prevailing attitudes Dissidents- charter should be malleable This will not result in greater rights for more people but an undermining its existence Pros and cons? Take away – constitutional law or constitutional convention Most important feature of constitution is the ability to amend the law by way of constitutional challenges If there is no legal limitation, rely on convention (A.V. Dicey- British jurist quote) Statutory law The legislative branch- inherited from British parliamentary tradition and based on principle of parliamentary supremacy? Sovereignty Most powerful branch and can make any laws so long as they are consistent with the Canadian constitution Parliamentary sovereignty Guiding notion that laws passed by our elected politicians much be followed and applied by the courts Requires judges to follow statutes and regulations according to their intent To reduce ambiguity around intent, courts deploy "rules to interpret legislation ○ Arbitrary ○ Vague(ness) ○ Overstretched ○ Disproportionate Rules explained: intentionalism V textualism The ordinary meaning rule (that courts apply the ordinary meaning of the worlds ○ Important fir the rule of law – it means what it says (character) Rule of law Scope -> Character -> The purposive analysis rule (that courts try to infer the purpose of the legislation in interpreting it) The contextual analysis rule (that courts interpret a section of an Act taking into account the context the entire legislation and legislative scheme The consequential analysis rule (that courts avoid an interpretation that leads to absurd results) A critique of approaches Textualism – arbitrary and produces inconsistencies, narrow focus on words ○ Assumes everyone shares a common understanding of the text, know what is required to be interpreted Intentionalism – go beyond words in search of other forms of apparent text to inform intent Result – incomplete ratios (approaches obscure a judge's decision as opposed to sufficiently explaining it) Judge-made law The judicial branch- courts and judges Are supposed to be concerned with the law not politics ○ Impartial legal actors Do not make laws, interpret them Strike down laws if unconstitutional When a law violates fundamental freedoms and rights: a time line of change via courts decisions On a more critical note: is the pursuit of uniformity a desirable goal? Are judges obligated to follow precedent? No! - "Distinguishing a case" ○ When material facts of past case is out of alignment with current case How receptive is judge made law (under the umbrella of common law) to other sources of law? ○ Part of the diversity argument Can judicial decision-making be uniform in all instances? ○ Lack of instrument or measures to ensure this Balancing common elements across the law(e.g., "foreseeability test" in tort) with ability to draw from other potential sources Key points In recent decades, a decline in the primacy of stare decisis Impact of changes to common law throughout all areas is producing a shift in the power of precedent, and... Reliance on the other source of law to inform legal decisions ○ Ex. Indigenous & international law Emerging sources of law (a) indigenous law and (b) Non-domestic law the rule of law DeFacto law Legal pluralism Democratization (a) the roots of indigenous law.. This is not Aboriginal law Prior to European arrival, IP had a law like structure(s) that was complex given number of tribes, languages, traditions  ○ Ethos: compromise, reconciliation, restitution, banishment Rigidity of common law during the 18th century, required a plan to "accommodate" indigenous concepts and systems of law IL interacts with the courts on issues of land, water, resources to solve conflicts between systems Example of indigenous legal system Legal order exist in codes of conduct, rules, teaching but less centralized Involves memory devices, elders, oral history rituals Great law of peace to govern relations between different groups ○ 1701 dish with one spoon wampum belt (reciprocity of Is IL, LAW? YES Canada is muti-juridical (custom, civil, common bust organized under a single legal order Canada supports idea of legal pluralism; Il recognized and upheld by the constitution Alike our constitution, much if it significance and power lies in its unspoken foundation assumption (unwritten, customary) Despite common thread, IL is juxtaposed against NON-IL ignoring that both have social function at the base ○ Il discredited on basis that is insufficiently legal – overemphasis on the social elements Indigenous Law, Aboriginal Law, and Defacto Law Hereditary chiefs opposed to Coastal Link pipeline, no consent given to build Do the Wetsuweten have any legal standing? Case before judicial review Indigenous communities do not have veto power ○ Clear direction that groups who hold title (right/documentation to a land) must give consent ○ No clear title - consent is re-articulated as "green light" to proceed ○ Is the burden on the crown or indigenous community to establish who has the title for the land ○ Traditional vs non traditional law: when you don't have a clear law, like in the books, how do you prove that you have title over the land What kind of evidence would you provide: case precedent, if possible, the treaty (but will not spell out the title officially), THE ELDERS (provide oral history but won't be codified since it is oral so will it be sufficient). Does this effectively give the crown the green light to proceed? Power of Crown is asserted but not supported, resulting in DEFACTO LAW and resistance ○ Courts reluctant to speak on jurisdictional authority, largely unsettled ○ Strict legalistic interpretation and tests force indigenous communities to "prove" rights to the land ○ E.g., injunctions ○ The onus is shifted onto the group of indigenous people (is it fair, is it constitutionally valid) Non-domestic sources of law: "tool or master" argument 5% of SCC case reference foreign, Non-C sources of law  Growing evidence that courts include non-domestic legal sources and crossover different fields in their decision making E.g., include international law and laws of other foreign nations, treaties, tribunal rulings Extradition cases: (Ostberg, et al. 01) ○ He has brought in hippos, that procreated and became an invasive species. The government want to step in and kill the hippos, and/or sterilize them (but they are not sure if the drug is safe) A human can act as a party for the interest of the hippos to ensure they are "safe" THE BIG PICTURE Pluralism invites "new sources of law" as signifier of participatory democracy (more people can engage in the system and the decisions can be better reflected of the changing society) E.g., international law, increase participation of non-state actors to inform of/ shape the law (Human Rights Orgs) Consensus around global norms = greater use of citations. "Black Letter Law": straight forward law that is found in the books, i think What is this telling us? The nature and scope of the precedent is changing ○ Globalization is impacting legal institution and tools ○ For every 12-13 cases (N = 1223), SCC refers to one foreign precedent. ○ We are moving beyond the binding principle and looking to other countries. THEORIES OF SOCIAL ORDER - NEW SECTION PART 1: Guiding Questions : How do societies maintain social order and by which mechanisms? Social Order Society is organized according to sets of rules and standards, allowing a smooth functioning Antithesis: anarchy Often problematic and taken-for-granted Political Continuum: major theoretical perspectives to explain relationships between the law and society. ○ < Value Consensus (Conservative) -- Interests/Pluralistic (Liberal) -- Coercion/Conflict (Radical) > ○ Arbitrary Law: irrational, unjustifiable The Consensus Model System: common values which lend legitimacy to government and transforms power into authority, fostering respect for the law (and affiliated institutions, e.g., police) Application: model applied to justify laws and law enforcement, reflecting the collective will of the people Solidarity: we agree that murder is wrong, but there are exceptions, like self-defence that will require further analysis Principles of Model... ○ Consensus: social order is based on consensus and people are committed to a unifying set of values  Internalization: values internalized through socialization and give rise to social order as people conform to norms, customs, and traditions. --> results to reward ○ Satisfaction: people obtain personal satisfaction and status from conforming to society's norms and values ○ Reflective: law reflects the collective will of the people and is a merely written statement of just that. Members of society agree upon the basic definitions of right and wrong. Example: gay marriage, cannabis (small quantities), women being able to vote Ones that do NOT: carbon tax, abortion debates, Chinese head tax (economic interest) ○ Equality: the law serves all people equally. Because it reflects the will of the people, the law neither serves nor repress the interests of any particular group/individuals Monopoly of the law. ○ Explanation of Disorder: the model explains disorder in reference to improper socialization. Crime results from the unique properties of the criminal. It is the individual that we have to address, not societal problems. The Pluralistic Model System: interests-based framework. Application: multiplicity of social groups with competing interests and values, giving rise to deviant conduct, dissension, alternative lifestyles, protests, crime, etc. ○ We do not agree upon the definitions of right and wrong, but do agree that we need dispute resolution mechanisms to uphold social fabric (e.g., legal system) ** (she said) Neutralization: justifying to yourself that whatever you are doing is right. Cooperation: social order evolves because people realize that can only achieve aims and interest by cooperation with others. ○ Example: business/commerce need dependability/predictability to prosper & aim for coop and exchange. ○ Result -- "peaceful" mechanisms that regulate potential conflict and gives rise to social order Values (connecting back to CLS): the legal system is value-neutral and exists as a value-free framework in which disputes can be settled fairly and peacefully. It is concerned through a "peaceful" forum for settlement of conflict. Example: how to treat offenders in criminal justice systems? Principles of Model... Pluralism and the legal system - The legal system is value-neutral and exists as a value-free framework in which disputes can be settled fairly and peacefully - Concerned with the best interests of society - Demonstrated through ‘peaceful’ forum for settlement of conflict A critique of the consensus model - Consensus model - Modern societies not homogenous- no one definition of right/wrong  - There are sufficient core values to form the basis of social order (democracy, freedom of speech, due process, equality, and hard work) - Benefits - Consensus on legal system as ‘peaceful’ dispute settlement measure - Value consensus is a necessary confusion but insufficient in itself to explain social order - Not enough to explain why social order make change A critique of the pluralistic model - Pluralistic model argues that people conform because it is in their best interest (benefits) - “Interests” are not freely chosen; society imposes interests and goals - Do we really have a choice? - How free are we? - People do adjust their interests to each other mutual benefit suggests that ‘interests’ necessary not a sufficient condition for social order The conflict model - coercion theory - Social order result of power & coercion - Conflict b/w groups one political power - Society is characterized by dissension, conflict, & hostility Conflict, Crime & disorder - Results from competition for power and scare resources & class conflict - Economic oppression of underclass - Small percentage monopolizes society’s wealth - At some level, we’ll be exploited Why? - The powerful impose their will via laws and this is ‘societal change’ Conceptualize these perspectives as mutually exclusive categories or ideal types Political theorists combine models Social order depends on coercion interest, and value consensus TWO MODELS OF CRIMINAL PROCESS Crime control model: Basic premise - Traditional model rooted in BNA Act of 1867 - “peace, order and good government” - Crime and social disorder threaten our liberty - Social order and repressing crime most important functions of the justice system - Thus, freedom only necessary through social order - Justice is achieved ultimately goal - Will do whatever possible to achieve social justice Liberty vs protection - Relinquishes degrees of liberty to gain protection from crime and from those who disrupt the social order - Less concerned with individual rights - Willing to give up a bit of freedom to be better protected - Most citizens are unconcerned about diminished rights because they are law-abiding anyway  - Error (someone may be falsely accused) - Excessive eights only benefit criminals - Sec- 11 Liberty in a democratic society - Liberty in a democratic society is always constrained - The old adage ‘your freedom to throw a punch ends where my chin begins’ hold true here - Your rights cannot be fringed upon others Value orientation - the police Police powers - Must be given resources - Operate upon a presumption of guilt - One of the most significant sources for police power is law - Law must give the police the power necessary to do the job - Law should be “enabling” ( writs of assistance) End V Means - CCM emphasizes social order, punishment, deterrence of criminal conduct, concern for victims and victims rights - End vs means ( the protection of society and criminal convictions) - The rights of the public outweigh the rights of the individual citizen Efficiency as priority - Concern with efficiency in the operation of the criminal process - Translate to a high capacity to apprehend, try, convict, and dispose of offenders (‘assembly line justice”) - Must be able to function on a large number of cases on limited resources - Presumes informality, speed, and finality In sum - CCM is characterized as a conservative, harsh, punitive approach to dealing with crime and social deviance - It can be encapsulated in the phrase, ‘throw the book out” The due process model - Emerging model in Canada - The greatest threat to our freedom comes from the misuse of power and authority - Underlying this model is an anti-authoritarian value system Police powers - Must be severely limited and monitored - Are ‘necessary evil’ and they must be made accountable for their actions - Protection of individual rights is given the highest priority and is enshrined in the constitution Police and rule of law - Must operate under the strict rule of law - Law limits PP and experienced by the police as impediments to criminal investigation and order maintenance - Evidence obtained illegally ad or in violation of one’s rights is rule inadmissible October 29 Quality control - DPM demands a formal, adjudicative, adversarial process headed by an impartial tribunal, judge, and or jury - Model stresses the possibility of error and bias particular against minorities and the poor - Mistakes are used as evidence to argue that the process needs reform and increasing vigilance Legal guilt vs Factual guilt ( satisfying actus and men rea) - DPM emphasizes legal guilt as opposed to factual guilt - Defense lawyers are less interested on whether or not their client ‘did it’ - concern if the police and crown can prove their case and whether or not their clients have been respected Means vs ends - The emphasis is on the means (the process by which the system operates) as opposed to the ends (convicting criminal and maintain order) - The use of appeals increase - More laws struck down by the supreme court DPM characterized - liberal model - Doing it by the book Benefits of DPM Protects ordinary individuals in their jobs (discrimination and abuse of power ) Enhances accountability and protects the vulnerable Critique of DPM - The rights of the individual are prioritized over the rights of society & responsibility of citizens - Obstructionist and expensive model (public purse) - Allows criminals to go free on technicalities - Questions rights of non-citizens - Extradition to death penalty countries not allowed in this case - Rights of victims ignored (Vigilantism) Extension of judiciary Shift om Canadian values - Greater endorsement and deployment of due process - In the past, police violations of law were overlooked - police are less likely to abuse authority ( poor job morale) In sum Argued that the infiltration of DPM has led to the ‘Americanization’ of Canada and the introduction an individualistic, adversarial, and litigious value system Merging models Are CCM and DPM reconciable? Merging CCM and DPM - Scholarly foundation is not to be advocated in its truest form - Error is inevitable in our justice system The reliability model Joining forces between police, crown and defense, victims and judges Part of broader reform effort to improve the of the criminal justice system (protect the inncoent and convict the guilty) Focusing Two sides of the same coin Growing evidence that fairer proceedings are compatible with crime control - Rise in due process rights has not translated into the accused’s exercising his or her rights - Ironically, witness the increased administrative quality of CJS - Defense lawyers rarely invoke due process rights (Defer to plea guilty or no contest) Major changes to investigative procedures - Reforms advocate to reduce number of wrongful convictions, adopting ‘truth-seeking’ values - Improving eyewitness identification evidence - Reforming the way eyewitness evidence is received and consider - Improving forensic sciences - Improving eyewitness identification evidence - Exocneations where the n conviction was initially based on eyewitness evidence (80%) - Centers around procedure for lin-ups - Some recommendation - Encourage a double-blind test Receiving/considering eyewitness evidence - Close to 20% of exonerations involve cases of a false confession - Traditional reid technique- break suspect down; to escape, they confess - New technique - empathetic, perspective-based - Interrogation should be about gathering info not eliciting a confession - Also, engage in electronic recordings of the interrogation process MODELS FOR DUE PROCESS Improving forensic sciences ○ Faulty Forensics: play a role in over half (51%) of DNA exonerations ○ Forensics developed in crime labs not science labs - validity undermined. If it were to be replicated, would it produce the same results?  We need to see all the steps taken, by having access to these specific standards ○ CCM - excluding certain types of evidence (e.g., fingerprint) impedes objectives. ○ DPM - lack of scientific expertise to measure validity ○ Reforms: commissions to determine validity and accreditation of DNA testing labs ○ Fingerprint Analysis: a print that is not visible has to be dusted and lifted. During this process, compression and, modifying the fingerprint, t/f it is not always reliable. According to the rule, a partial print can be convicted. Fingerprints can also be photocopied, t/f during analysis and application can affect the quality. Jailhouse Testimony: highly unreliable; tremendous incentive to the 'snitch' ○ Sounds confessional, therefore persuasive ○ Must be excluded because often false. But it is a good place to start your investigation, not to convict someone. ○ Reform system by taking a precautionary measure at the very least Improved Defense Counsel: ○ CCM - defense counsel viewed as impediment to processing the guilty ○ DPM - key to asserting and protecting defendant's rights ○ Cutting corners via pleas/no contest undermines each model and reliability of the system ○ Vigorous defense essential to CJS Expand discovery rights: depends on jurisdictional differences, which are then impacted by the different resources. In some cases, the Crown does not need to present exculpatory evidence. CONCLUSION: the 'reliability model' is constructed as a new paradigm where CCM DPM values are viewed as compatible. ○ Truth-seeking mechanisms are important to due process for the innocent and the guilty because they help establish culpability levels ○ By improving investigative procedures, this new understanding of due process protects defendants' rights. ○ Aim is to reform through 'best practices' approach ○ Requires the coalition of legal actors to form commissions to investigate procedural law, ensuring procedural safeguards are in place CIVIL LITIGATION AND THE TRIAL PROCESS Ontario: 52 locations plus satellite, belonging to 8 judicial regions; civil, criminal, family, small claims Ontario Superior Court of Justice: hears all civil proceedings. Commercial matters, personal injury, bankruptcy and insolvency cases, and litigation involving wills and estates ○ Governed by the Rules of Civil Procedure and/or particular legislation The Divisional Court: a branch of the Superior Court of Justice, where the judicial review happens ○ Statutory and some civil appeals from administrative tribunals in Ontario ○ Involves civil appears of $50,000 The Small Claims Civil Litigation and Trial Process  Majority of the civil cases do not make it to trial, too time-consuming and costly (chances of payment is small) System also screens out cases, forcing plaintiffs and defendants to settle. ○ E.g., the implementation of mandatory mediation process of Ontario Steps in the Civil Litigation Process - Superior Court Level Early Stage: to uncover as much information as possible before trial, identifying factual and legal issues of the case ○ Both parties are informed of the action ○ Most cases require a lawyer, to help you navigate each step, paperwork, and appropriate motions Pre-Trial Procedures: in Ontario, an action is started by filing a writ of summons (usually, cases are settled before trial) ○ Plaintiff fills out motion, authorized by a court registry ○ Must serve the warrant to the defendant in person ○ 20 days to respond, if there is no response, they give default judgement. Judge decides $$$ Making a Statement of Claim ○ Plaintiff outlines allegations, damages, provides supporting documentation (aka the pleadings) $243.00 in Ontario ○ Defendant must repond to this statement. ○ Counter Claim: ○ The defendant prepares statement of defense, filed with court registry Copy is sent to plaintiff Pre-Trial Motions ○ Lawyers are typically involved and will request further information from either party ○ Lawyers also engage in pre-trial motions to dismiss the proceedings and ask for change in venue. Discovery During Pre-Trial ○ Examinations of documents by lawyers ○ Involve testimony and questioning under oath of both parties Detailed questions although lawyers can object to a line of questioning, if irrelevant ○ Objective - to make available all evidence and allegations (no surprises) ○ Transcribed and included as evidence as trials Alternatives to Trials ○ In-Chamber Meetings: common for lawyers to approach judge to explain why a settle cannot be reached Judges will question the merits of the case, point our weaknesses, and pressure both sides to come to an agreement (AKA judicial settlement conference) This is not a trial! Judges may order payment of legal fees; discourage proceeding to trial ○ Admit Guilt: defendants can also make payment to the court if they admit to lesser damages than claimed by the plaintiff Admission of guilt has value  If the judges rule that the damages are what the defendant has agreed to pay, he/she may award some amount of costs to the defendant. ○ Rejective Offer to Settle Pre-Trial: the judge may order extra costs against a defendant who rejects an offer to settle The judges may order costs against the plaintiff when the judgement... EXAMPLE: the plaintiff is using for $1000, the defendant makes an offer to the plaintiff to settle for $850 plus costs. The offer to settle is made in writing and is served on the plaintiff more than 7 days before trial. The plaintiff does not accept the offer to settle. At trial the judge awards the plaintiff $750. After the judge gives the judgement, the defendant shows the judge his offer to settle. The judge awards the defendant costs of $100. We are trying to be fair, not leaving any party destitute. Trial ○ Similar to criminal trials - testimony, cross examinations ○ Heard by judges unless a personal injury case (jury) ○ Strict Rule of Evidence: your lawyer may not use leading questions by the lawyer during cross examination can E.g., you were in a rush to get to work that day, weren't you? ------ how would you describe your driving that day? ○ Hearsay is inadmissible ○ Appeals: made on questions of law but not based on questions of fact. If an error in law has occurred, then an appeal may be granted. Costs of appeals are prohibited since transcripts alone can run into thousands of dollars. The appellant launches the appeal and the respondent replies to the action Courts can uphold the original decision, new trial, overturn decisions ○ Enforcement: the winner must take steps to get his/her money. It is difficult if the defendant is broke or has creditors also fighting for remaining funds. Cost of action may not be worth the reward if the defendant avoids payment If a person has money/assets, the winner can take steps to garnish wages or bank accounts. Tort Law What is tort law? Separate from divorce, property, contracts, wills Allows plaintiff to bring civil law suit against another party with compensation determined by judge Emphasis – to protect the individual ○ Give them tools to do so Basic principles tort Refers to a breach of legal; duty with liability for damages Absence of contract ○ Court has to step ○ Damages can be seeked  Tort action deploys the civil law to bring a private action for compensation for harm suffered ○ Private wrongs Types Intentional, negligence Intentional torts refers to the actions that willful, deliberate and conscious The person need only intend the act and not the harm that results for them to be liable Burden of proof is lower Balance of possibilities Negligence – inadvertent action Most common Actions that inadvertent ○ Not willful or deliberate There are 5 core elements that must be present for negligence suit 5 elements to prove Duty of care- duty to be careful (?) Fault or breach – behavior fell below standard to constitute fault ○ Acts that willful or intentional ○ Are inadvertent or careless ○ Test to determine an appriotate duty of care ○ "was the harm reasonably foreseeable?" - courts will see this Lose/ damage/ injury – plaintiff must demonstrate some types of lose (ex., metal distress, physical harm) Causation- injury direct case of conduct of defendant ○ Novus actus – the intervening act ( undermines causation) ○ But fore test Contributory negligence – no prejudicial conduct on part of the victim ○ Don’t use and still continue to pursue to use it How does civil negligence differ from criminal negligence ○ Higher burden of proof for criminal negligence ○ Balance of probability for civil negligence Type of injury – significance of the harm ○ Location / context ○ Conditions Algonquin park drowning Is it criminal negligence Mills defense No reckless disregard Lack of moral blame Does not equal criminal negligence It was careless but not premediated Civil negligence Defense against torts Accident - defendant could reasonably foresee the danger ○ The Algonquin drowning Had no control over the incident Event could not have been avoided with the greatest care and skill ○ Driving on an icy road at the speed limit, coming to a stop but sliding into another vehicle or pedestrian Other defenses Contributory negligence? Prejudicial conduct ○ Insurance companies often use this angle to protect against a claim ○ Did it yourself One did exercise due care ○ Kept compliance records after each inspection of workplace, ensured all areas double checked for safety violation ○ Marked departure from the minimum ○ Standard of care Necessity – self preservation or the preservation of other ○ Trespass to avoid physical threat Lack of causal connection ○ Breaking arm one week after falling on ice one Voluntary assumption of risk Victims disqualified from seeking damages Courts reluctant to use this against a victim unless he/she also gives up any claim to damages Court judgments – remedies When a defendant is found responsible for the plaintiff injury, the victim can receive damages Damages consist of financial reward or compensation to redress harm or loss suffered by plaintiff 4 types of damages Special/general damages Damages that be calculated precisely Car repair General damages are awarded when its difficult to precisely determine fixed amount for loss or injury Value of losing an arm Thursday November 7th 4 Types of Damages: ○ Special Damages: damages that can be calculated precisely (example, cost of repairing a car) ○ General Damages: awarded when it is difficult to precisely determine fixed amount for loss or injury (example, cost/value of losing an arm) ○ Punitive Damages: aka exemplary damages; rarely used, used to punish specific tasks  ○ Injunction: defendant ceases wrongful conduct (harassing phone calls) Replevin: judge can also order to defendant to return goods to the rightful owner Can injunctions be problematic for certain groups? Legal tools to suppress protest (but it is within your Charter of Rights and Freedom, freedom of speech and assembly) and curb civil disobedience E.g., corporations rely on courts for injunctions against indigenous groups in resource extraction activities (Ceric, 2020) The BC Supreme Court granted Coastal GasLink Ltd. An injunction restraining members of Wet'suwet'en hereditary leaders and supporters from blockading a portion of their territory to prevent the construction of the Coastal GasLink pipeline project. Critique of the Civil System One of the most significant critiques of the civil system revolved around issues of access Everyone in Canada is entitled to access the criminal justice and civil system: low-income groups are disadvantaged by this system Filing a claim involves a cost to plaintiff ($200.00 to file a writ) ○ You can apply for a fee waiver that is you can fill in forma pauperis which excuses you from paying this initial filing fee ○ Fee waiver programs in Canada and each province has its own variation The application to get the paper is around 20 pages long. Plus you have sit around all day in court, thus impeding our access Overviewed the following key areas: Principles of Tort Law - breaches Different types of liability, damages, remedies (e.g., injunction) 5 elements required to establish negligence ○ Highlighted through the Jeremiah Perry drowning case Defenses available to defendant If criminal court does not prove fruitful, a civil proceeding may be the next best thing CONTRACT LAW Background Info Civil Law is known as "code law" and tort law deals with violations of civil laws ○ Governs private transactions between individuals/groups Common Law relies on precedent, unlike the civil law, therefore there is arguably more stability Common law relies on lawmaking by courts and judges therefore less efficient and more difficult to respond to social change Civil Law plays an active role rather than a passive role - do not wait for cases to come to them but rather can initiate change through the legislative branch Contract Law - Beginnings  Contract law emerged from tort law in the 19th century during an interesting period in history noted the New Order wherein individualism grew and produced a need for contracts to govern the work world. Law is not neutral: it reflects society, and it is a guideline for social interactions, permeates every aspect of our lives, law is ideological, rooted in morality, politics, etc. Contracts are reflective of power imbalances and can be coercive depending on the context and circumstances ○ The state refrains from stepping in on basis that contracts are entered into voluntarily Principle of Free Contract (PFC): as opposed to PP (pareto principle) which recognized one part if worse off and requires intervention to ensure that as result of contract no one party is worse off Courts cannot intervene since we entered it within our free will; the other side understands that that is not always the case Contracts and Good Faith Good Faith Principle: integral part of contract law, although in Canada, represents the 'bedrock' but not necessary a contractual doctrine ○ Definition in the context of contract law: "standards of appropriate behaviour relevant in a community" This standard is less concerned with morality and more preoccupied with reasonableness in the circumstances Civil Law; wrong or "breach" Injured party to demonstrate breach Compensation awarded (fixed, imposed by contract, restore back to where they were before) Define a Contract A lawfully binding agreement between two or more parties Generates rights and obligations that are enforced by the courts Method of Enforcement: an 'action' for financial damages for breach of contract In some cases, the court may compel performance (tell the other party to complete what was required by the contract) Bilateral: involves promises by each party (selling your home, giving money in return) Unilateral: involves one party in exchange for an act of the other party (offering an award for locating a puppy) Principles Underlying a Contract Commercial relationships You mean what you say If it looks like an agreement, it is Interested in intention not fairness Written contracts carry great weight: take the handshake deal that the McDonald brothers did Little control over the context of most contracts Components of a Contract Terms: statements, promises, stipulations  Exclusion Causes: exclude or financially limit one party's liability for breach of contract, misrepresentation or negligence Discharge: how the contractual relationship is ended ○ Options - performance, agreement, frustration/exhausted, breach 5 Elements of a Contract to Signal Validity: ○ Offer and acceptance ○ Consideration (give and gain) ○ Intention (ad item) and capacity to understand the agreement Intoxication, coercion, language of the contract is not accurately being translated ○ Legality (i.e., you can not contract illegal services) ○ Discharge or completion Vulnerability and Undue Influence: ○ Segments of society are vulnerable to exploitation and require special protection ○ Their freedom to bargain and enter a legally binding contract has been limited ○ Undue influence & misinterpretation of fact are considered a wrongful act and affects validity of contract ○ Involves one person having power over the other - invoke equity principle Remedies Quantum Meruit: claim for reasonable remuneration 'as much as he/she deserves' Unusual or Unexpected Losses: i.e., remoteness of damage that could not have been reasonably foreseen by the breaching party at time of agreement will not be included in award Damages can be adjusted if the plaintiff fails to limit losses ○ Common in cases of contributory negligence Injunction: used to make the person stop what he/she is doing if conduct is inconsistent with the terms of the contract ○ Prohibition of continuing in certain activities such as: producing goods without patent/license or even advertising another person's song or image. Trespassing on private property. Types of Injunction ○ Mandatory: injunction forcing someone to 'act positively'. Which is rare and permanent ○ Interim: preserve status quo in on-going cases until an interlocutory injunction is granted ○ Interlocutor: refrain from conduct temporarily until trial On-going cases, longer duration than interim injunction ○ Permanent: granted at the end of a trial Must consider if appropriate and whether party is within its legal rights to do so Would bring irreparable harm Specific Performance: breaching parties may be ordered to finish the work ○ Utilized when damages are not an appropriate remedy - i.e., difficult to allot a monetary value ○ Specific performance can not be applied when:  Performance causes hardship, contract is vague or one-sided, lack of mutuality between parties (i.e., agreement and acceptance), plaintiff acted in 'bad faith' Tuesday, November 12th A case example to highlight requisites and implications: C.m. Callow Inc v. Zollinger 2020 SCC 45 - Condo corp. (Baycrest) contracts callow for snow removal for 2 years - Convenience provision that allowed condo corp to terminate for any reason with a 10-day notice - Callow enters negotiation to renew the contract with Condo Corp. Secretly intends to terminate but does not disclose this information - Negotiation continues - callow is unaware of corp intent, proceeds as usual believes that services are required - In the summer, callow provided as a goodwill gesture some “freebie” services - By the end of year two contract, corp have notice to terminate services - Callow filed a suit for breach of contract Judge decision - Corp deceived callow - Judge awarded damages (lost profits for one year), cost of “freebie” work, and leasing equipment costs for work done and anticipated work - Court of appeal overturned the decision - Discussions during negotiation to review revolve around future contracts, not the performance of existing contract - Supreme Court overturned the decision of the appellate court (took 1 year) key legal issues - Parties to a contract have a duty to correct false impressions given to the other party - You can’t lie, you can’t omit information, or be silent in accordance with duty of honest performance - Corporation breached this by making detective representations - All was well with services rendered and moving forward with callow - Damages upheld by the Supreme Court - The content of communication and context of communication must be considered to avoid being accused of deception Summary - Defintion of a contract, the various components of a contract - What elements are required to make it valid - Signature - Intention - Legality - Mutual agreement - Discharge - - What are the guiding principles - Good faith - The types of remedies disposed by the courts (damages, injunctions, specific performances - On a theoretical level, we began to explore how contracts shed light on the relationship between law and society - Liberates us and binds us simultaneously - Contracts, in particular, the good faith principle signifies more than just a promise of future exchange but a test to determine what behaviour is expected within a given set of circumstances