LAW 101 Final PDF

Module 1 Public law -​ Relationship between individuals and society -​ Ex. criminal law, constitutional law, administrative law, taxation law Private law -​ Relationship between individual and individual (including corporations) -​ Ex. contract law, tort law, property law, family law...

Module 1 Public law -​ Relationship between individuals and society -​ Ex. criminal law, constitutional law, administrative law, taxation law Private law -​ Relationship between individual and individual (including corporations) -​ Ex. contract law, tort law, property law, family law Why do we need laws? Same conduct (input) —-> same result (output) -​ Ex. To have binding agreements for business -​ Ex. To have regulated outcomes for like sentences Legislation -​ Law made by gov’t (fed or prov) Legislative process -​ Three branches of gov’t 1.​ Executive 2.​ Legislative -​ This branch is responsible for passing legislation 3.​ Judicial Life cycle of legislation -​ Starts as an idea or proposal- Bill -​ Bill is put forward by an elective representative and an initial draft is voted on by members of the legislative body (can be voted on, changed, or withdrawn)- first reading -​ Continues on, addressed in greater detail- committee stage -​ Final reading -​ Once legislation passes, it must receive royal assent- kings authorization Interpreting legislation -​ Sometimes legislation is unclear -​ To resolve these issues, we use driedgers modern principle of statutory interpretation 1.​ Plain meaning approach -​ Read the words and decide what they mean in everyday language (usually straightforward) 2.​ Contextual approach -​ Requires you to consider whether there are any other sections of the act/other acts to determine if the interpretation would produce a inconsistency/absurd result 3.​ Purposive approach -​ Requires you to look at the object of the act; what is the problem or issue the legislature is trying to solve? -​ Called the “mischief rule”, because you examine the mischief sought to be prevented Common law vs Civil law -​ Canada used a combination of common law and civil law 1.​ Common law: -​ originated in england  -​ law that is not written down as legislation, but evolved into a system based on precedent; meaning it can only be found in past decisions. -​ it adapts to changing circumstances and is flexible -​ Can be referred to as “judge-made” law (aka precedent or jurisprudence) 2.​ Civil law: -​ originated in france -​ contains comprehensive rules and general principles to deal with disputes -​ courts in civil law look to a civil code, and then refer to previous decisions to see if they’re consistent -​ (Quebec is the only province with a civil code) Rule of law -​ Rules are not arbitrary -​ Nobody is above the law, regardless of power or influential status -​ It is a British constitutional doctrine imported into the Canadian constitution through the preamble of the Constitution Act of 1867 -​ Describes an ordered society, but also describes judicial independence of the executive branch of the government Module 2 Constitution -​ Legal claim in which the state functions and operates, which outlines the distribution of powers -​ All laws and gov’t actions must conform w/ the constitution to be lawful -​ S. 91 of constitution lists exclusive powers of the federal parliament -​ S. 94 allows parliament to make laws for uniformity in certain areas Constitutional supremacy -​ The constitution is the supreme law, and any laws inconsistent with the constitution are invalid -​ Canada's constitution and constitutional law act as “a mirror reflecting the national soul” How does the constitution change? -​ The constitution is seen as a “living tree capable of growth and expansion within its natural limits” -​ Change is slow, and the trunk and roots are stable Federalism -​ Important for diversity of provinces -​ Division of legislature powers; fed and prov -​ Was driven by the desire for a strong central govt and parliament, but also by autonomy and self-gov’t for each division Federal paramountcy -​ Federal law prevails over prov law  Module 3 Trial courts -​ Single judge -​ Receive evidence -​ Witness testimony -​ Written affidavits Appeal courts -​ Review trial decisions -​ Multiple judges -​ Hears appeals of previous decisions, rarely receive new evidence Provincial superior courts -​ Both trial and appellate functions Standards of review -​ High standard of review: large error is required (trial judge made large error) -​ Ex. palpable and overriding → trial judge made large error -​ Low standard of review: small error justifies intervention -​ Ex. correctness → trial judge decision must've been correct -​ If standard of review is one of correctness, appeal court will intervene regardless of whether the error was small or large Deference -​ Another term to describe how readily the appellate court will be to intervene -​ High deference = reluctant to overturn -​ Low (or no) deference = easier to overtun (more willing to intervene) Court case example: R v Hussein, 2022 -​ Accused convicted because of fingerprint on garbage bag -​ Trial judge took “judicial notice” (assumed) that someone would have to take off a glove to remove the garbage bag -​ On appeal, the question was… -​ Was the trial judge correct in this assumption? (of whether someone would need to remove their glove) -​ Standard of review of correctness: -​ No deference- even a little error is a problem R v Morin-Poitras, 2022 -​ Accused convicted because of testimony of complainant -​ Appeal was on the basis that the trial judge misunderstood the evidence -​ Trial judge given “high degree of deference” What is NOT an appeal -​ “Well, i’d have made a different decision” -​ It isn't enough for court of appeal to say “we would have drawn a diff conclusion” -​ On condition of high degree of deference, court of appeal must come to a conclusion that there was no way that the trial judge could have interpreted the evidence in the way that they did Precedent and binding decisions -​ Lower courts have abiding precedent to upper courts -​ Stare decisis: stand by things decided (courts will abide by decisions made by higher courts) -​ Every court is bound by supreme court, only lower courts in Alberta are bound by Alberta Court of Appeal Why does everything not go to court? -​ Access to justice- refers to individual rights to receive a fair resolution to their dispute in a timely manner (everyone needs this in the justice system) -​ Finite court resources- there's only so many reporters, judges, lawyers to go around -​ Too many disputes to bring everything to court- if everything went to trial, there would be huge waiting times (to promote efficiency) Administrative tribunals -​ Tribunals play a vital role in applying/interpreting the law -​ It is law applied by decision makers outside a courtroom (cannot exercise any jurisdiction that isn't in their ‘enabling act’) -​ Process: 1.​ Receive evidence 2.​ Apply law 3.​ In many ways, similar to judges presiding over a courtroom -​ Ex. Residential Tenancy Dispute Resolution Service (RTDRS) -​ Deals with disputes between landlords and tenants in a way that prevents having to go to court Civil litigation 1.​ Pleadings- parties put out written documents about their version of events a.​ Plaintiff: the person who brings a lawsuit -​ Will want to set out facts that they believe entitles them to a legal remedy, and identifies remedy they want -​ Ex. court order that the other party owes them money, return property… b.​ Defendant: the person who is being sued -​ Will set out their statement claiming why they don't owe legal obligation 2.​ Discovery- civil procedure model designed to try and get ppl to resolve disputes without going to trial -​ Includes both document discovery and questioning -​ Parties told to share their versions of statements w/ each other to attempt a mutual understanding 3.​ Trial- parties appear in front of judge, and argue their versions of events 4.​ Decision- court decides what litigant wins, and gives reasons -​ Court's decision set out in a court order 5.​ Appeal- if either party is unhappy, they can appeal to a higher court Resolution without trial 1.​ Settlement -​ Ex. defendant agrees to pay part of dispute 2.​ Alternative dispute resolution  -​ Occurs outside of a courtroom, as an attempt to compromise solutions -​ Different techniques to proceed through a solution without going through full litigation -​ types: Mediation, Negotiation, Arbitration 3.​ Summary procedure 4.​ discontinuance/abandonment/delay Judgement enforcement Judgement debtor (has to pay) $ —> $ Judgment creditor (gets paid) -​ A judgement is a court order requiring one person to pay money to someone else -​ A court may grant a judgement: 1.​ As a remedy, because a party's legal rights have been breached 2.​ To the winning party, to cover a portion of their costs Common options for enforcing a judgement -​ A civil enforcement agency is a private business that oversees judgement enforcement proceedings in Alberta 1.​ Seize and sell personal property 2.​ Sell real property 3.​ Garnish a payment Garnishment -​ In a garnishment, a creditor intercepts this payment -​ Ex. wages, bank account Law societies -​ Regulates lawyers in your province or territory -​ Set standards, investigate complaints, and discipline members who violate the rules of conduct Code of conduct 1.​ Competence -​ A lawyer must perform all legal services undertaken on a clients behalf to the standard of a competent lawyer 2.​ Confidentiality -​ A lawyer at all times must hold strict confidence and not divulge any information 3.​ Conflicts -​ Risks of a lawyers loyalty to one client due to their own interest, duties, or relation to another client 4.​ Integrity -​ Duty to practise law and discharge all responsibilities to clients, tribunals, the public, and other members of the profession Module 4 The charter -​ Set of bill of rights that protect individuals from gov’t interference What does the charter apply to? -​ Applies to the fed and prov gov’t, and the laws that those gov’t make -​ Applies to when institutions provide certain things- health care, education… -​ Does not apply to private things individuals or private businesses do Freedom of expression -​ Is what makes parliamentary democracy possible -​ Idea of expression = “breathing” (vital to human life) -​ Expression has both a content and form, activity is expressive if it attempts to convey meaning (you just need to attempt to convey meaning, you don't have to be successful in conveying meaning) -​ Any acts of violence, as a form of expression, falls out of the protective sphere Case study example -​ R v Keegstra -​ High school teacher who taught students that the holocaust was fake -​ Was charged under s. 319(2) with unlawfully promoting hatred against an identifiable group by communicating anti-semitic statements What does section 1 of charter tell us? -​ There are reasonable limits prescribed by law -​ s. 1: that the charter guarantees the rights and freedoms set out in it are subjected to only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society -​ Limiting rights are necessary to protecting other rights The Oakes test -​ Test used to determine is a law or policy that limits a right under the Charter is justified (does a law limit a right) 1.​ Pressing and substantial objective -​ Is the law's objective of sufficient importance to warrant the infringement of rights and freedoms? 2.​ Rational connection -​ Are the laws measures designed to achieve the objective in question? 3.​ Minimal impairment -​ Does the law infringe rights as little as reasonably possible? 4.​ Proportionate effects -​ Do the benefits of the laws objectives, outweigh the harms of its infringement of rights and freedoms? Reasonable restrictions on rights and freedoms -​ Ex. noise bylaws, fire codes, defamation laws What can someone do if their charter rights have been infringed on? -​ may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances The missing charter right- property -​ Property recognized as human rights in many places, but not in Canada -​ Argued to be a double edged sword -​ Case study example: Didow v. Alberta Power Ltd., 1988  -​ Overhanging cross arms of a power pole went past Mr. Didows fence line -​ S. 3 states that notwithstanding anything, any structure that is part of a transmission line, may project into the airspace over the property… and no person is entitled to any remedy or damages Module 5 Criminal law -​ Wrongs against society 1.​ Substantive -​ Definition and interpretation of criminal offence -​ Ex. murder, theft… 2.​ Procedural -​ Law that regulates the investigation of crime by police, rules around collection and use of evidence, and rules associated w/ conduct of trial Sources of criminal law 1.​ Parliament- exclusive and centralised power of criminal law; can create criminal law 2.​ Provincial legislature- can create non-criminal offences in order to enforce legislation that they are otherwise constitutionally entitled to enact; punishments related to provincial law 3.​ CL- contempt, procedural law, etc Regulatory offences -​ regulatory offences do not constitute conduct that in itself is prohibited, but rather this conduct is prohibited because it is beneficial for public interest -​ Prosecution just has to prove the defendant committed the prohibited act -​ No mental element -​ Instead of burden of proof being on crown, it is on the defendant to prove that they acted w/ due diligence and tried to prevent what happened Summary vs Indictable offences 1.​ Summary -​ Mostly minor -​ Ex. disturbance, trespassing -​ Max penalty for this offence is normally: $5,000 fine, 6 months in prison, or both 2.​ Indictable -​ Most serious -​ Ex. theft, murder -​ accused has three choices: -​ Have a judge alone hear the case in provincial court. -​ Have a judge and jury hear the case in a superior court. -​ Have a judge alone hear the case in superior court. Court levels 1.​ Provincial trial court (Alberta Court of Justice) -​ Created by prov, judges appointed by prov govt 2.​ Provincial superior trial court (Court of Kings Bench) -​ Created by prov, judges appointed by fed govt 3.​ Provincial courts of appeal -​ Created by prov, judges appoint by fed govt 4.​ Supreme court -​ Created under statute, judges appointed by fed govt Elements of an offence: What prosecutors must prove 1.​ Actus reus: the act itself -​ criminal act/omission -​ Prosecution has to show that the accused had conscious awareness of what they did 2.​ Mens rea: the minds intent -​ mental element/criminal mind -​ Subjective: prosecution must prove that the accused was aware that the consequences could occur Ex. punching victim → accused knew death was likely to occur -​ Objective: prosecution must prove whether or not a reasonable person would have been aware of the consequences Ex. would the reasonable person know that this punch could cause reasonable harm Three types of defences 1.​ Raising a reasonable doubt -​ Idea that prosecution didn’t fulfil their burden beyond a reasonable doubt 2.​ True defences -​ If successful, acquittal will happen, even if actus rea and mens rea are proven a.​ Self-defence b.​ Duress c.​ Provocation (only applies to murder → reduces conviction of murder to manslaughter) 3.​ Mental disorder -​ Must establish, that at time of offence, suspect was suffering from mental disorder that prevents understanding of wrongfulness -​ If successful, no acquittal, special verdict instead: not criminally responsible 4.​ Mistake of fact -​ Claim that prosecution cant prove mens rea of an offence -​ Ex. charged for having drugs, but thinking it was sugar 5.​ Intoxication -​ Crown can not prove that accused was aware of what they did during intoxication Sentencing purposes 1.​ Denunciation- the culpability of an offence 2.​ Deterrence- from accused of convicting more crimes 3.​ Incapacitation- the separation of accused from society 4.​ Rehabilitation- of accused into society  5.​ Reparation & responsibility Other principles 1.​ Principle of restraint- want to avoid incarceration 2.​ Indigenous offenders- avoid incarceration if possible, to consider marginalisation 3.​ Aggravating & mitigating factors- serious sentences or rehabilitative sentence Detentions -​ Charter s. 9: rights against arbitrary detention Three types of detention: 1.​ Physical -​ Any physical control over a subject = they are detained 2.​ Legal compulsion -​ Any sense that they are under legal obligation to cooperate w/ authorities = detained 3.​ Psychological -​ Ppl have the right to refuse encounters w/ police, but the reasonable person would feel compelled to cooperate = detained Grant factors of detention 1.​ Circumstances of encounter (police purpose) -​ Police showing up to a scene oblivious vs. police showing up to a scene interrogating someone 2.​ Nature of police conduct (what police did) -​ Were police open ended or demanding? 3.​ Circumstances of accused -​ Were personal characteristics of subject discriminated against? When is detention arbitrary? 1.​ Law does not authorise it 2.​ The law authorising it is arbitrary 3.​ The manner in which it was done was not reasonable Case study: R v Mann -​ Police need reasonable suspicion that someone committed a crime Upon detention, police must: (under s. 10 charter rights everyone has to the right on arrest or detention….) 1.​ To be Informed of the reason for arrest or detention 2.​ To be Informed that they can retain counsel without delay Rules of sentencing -​ Principle of proportionality 1.​ Gravity of offence 2.​ Offenders degree of responsibility Case study: R v Wong, 1990 -​ Police had suspicion that ppl were using hotel room for illegal gambling but didn’t have enough grounds to get a warrant -​ Since there were no provisions in law to use video surveillance to monitor ppls activity (as long as you didn’t capture audio) you could put a small camera in room  -​ Lower court said this did not break individuals reasonable expectation of privacy -​ Courts questioned whether what ppl did behind a locked door had a reasonable expectation of privacy (decision of courts can’t be influenced by the fact that police did find illegal activity) Case study: R v Tessling, 2004 -​ Expectation of privacy is a normative rather than a descriptive standard -​ Garbage can expose many things of life, deeming within itself an expectation of privacy. However, as soon as you put it out for garbage collection, it is no longer protected Rights against unreasonable search or seizure -​ Police must adhere by these standards before conducting a search or seizure 1.​ Warrant (the “prior authorization”) 2.​ Probable grounds (to believe that an offence was committed and that evidence would be found through the search) S. 24 Remedies 1.​ Stay of proceedings -​ Hard to obtain -​ If a stay is awarded by a judge, this permanently ends the prosecution against the accused, subject to the right of appeal that would also apply to an acquittal 2.​ Damages -​ Can be awarded for violations of charter rights 3.​ Costs -​ Often for improper or late disclosure on the part of crown prosecutor to compensate accused for the last time 4.​ Trial process remedies -​ Order to disclose relevant evidence to defence Pre-trial procedures 1.​ Intake -​ Arrest and police custody -​ Appearance notice/summons -​ Laying charges (the “info”) 2.​ Bail -​ First appearance: police have to give up custody within 24 hrs and pass authority to court -​ Presumption of release: in most offences, crown has to justify restriction on liberty (serious concerns, threats, public confidence grounds) -​ Release conditions: burden is on the crown to justify any conditions. Condition ex. Surrender passports, stay in one location, no contact w/ someone…. -​ Can deny bail on serious concerns: reasonable belief someone won't show up for court, will continue crimes, or for the public's safety 3.​ Disclosure -​ Prosecution has to provide all info/evidence 4.​ Plea or plea bargains -​ Negotiations between both sides to try and resolve issues before trial, so no trial needs to occur -​ Ex. plea guilty for joint sentencing agreement 5.​ Elections -​ Accused elects mode of trial  -​ Ex. in superior court w/ judge + jury, in prov court with judge + no jury… 6.​ Preliminary inquiry -​ Rare, restricted eligibility -​ Charged w/ offence w/ max punishment of 14yrs or more. Request can be made, w/ inquiry to determine whether there is sufficient evidence to justify you going to trial 7.​ Jury selection (only in superior trial court) The trial 1.​ Information & indictments -​ Police lay out charges -​ The basis of prosecution 2.​ Jury & jury selection -​ Only exist at superior court level 3.​ Prosecution & defence evidence -​ Calling of evidence by crown prosecutor 4.​ Verdict -​ Delivered by judge or jury Module 6 + 7 Difference between… Indigenous law -​ The body of legal traditions of Indigenous groups -​ Law made by Indigenous ppl about Indigenous ppls legal traditions that regulate how they make their laws Aboriginal law -​ Settler law that concerns issues related to Indigenous ppl -​ Law created by the crown that applies to Indigenous ppl Difference between… Aboriginal title -​ The right that applies specifically to historical land that belongs to an aboriginal group (to give nations exclusivity, control, and beneficial interest in resources of land) -​ Indigenous nations must prove 3 things to receive title: 1.​ That the group occupied the land prior to European sovereignty 2.​ That there was continuous occupation of land from pre-sovereign to modern times 3.​ That the group exclusively occupied that land -​ Difficult to get title recognized by the court… 1.​ Needed permission to sue the crown prior to the 70s 2.​ Land claims outlawed under indian act from 1927-1951 3.​ Finding historical records is expensive and hard Aboriginal right -​ The right to exercise traditional cultures, customs, and beliefs -​ Originate from nation-to-nation relationships Treaty right -​ Rights that arise out of a treaty, liberally and generously -​ Ex. medicine chest in treaty 6  -​ The crown CAN infringe on aboriginal rights, if it meets the sparrow framework… -​ The crown must have compelling and substantial objective -​ The crown must show that its objective is within its “fiduciary duty” Sui generis -​ Aboriginal title, aboriginal right, and treaty rights that are special rights derived by a sacred agreement between the crown and Indigenous ppl R v Sparrow, 1990 -​ Band member charged w/ using a net too big to catch fish -​ Argued he had a constitutionally protected Aboriginal right to fish -​ Was successful in his claim, conviction overturned (s. 35 given generously and liberally) S. 35 -​ Existing aboriginal and treaty rights of aboriginal ppl of Canada recognized and affirmed R v Van der Peet, 1996 -​ Test to be applied when aboriginal rights come into discussion 1.​ Groups must prove that right being claimed was integral to their culture prior to european contact 2.​ Reasonable continuity between pre-contact practices and contemporary claims Indigenous-crown relations 1600s: early colonizations 1763: The Royal Proclamation -​ Agreement between 2 sovereign nations (crown + Indigenous ppl) to share the land that is Canada, which only applied to crown subjects (everything that fell under the dominion of english crown) 1764: The Treaty of Niagara -​ Conference of the crown that agreed that Canada would be shared between the crown and indigenous ppl -​ 2 reasons why it's important: -​ One of the first agreements between the Crown and First Nations -​ Is a framework for peaceful coexistence between the 2 groups 1867: Constitution Act -​ S. 91 essentially laid out that Indian reserves fall under the fed govt 1876: Indian Act -​ Oppressive document that served to take away rights 1951: amendments to the Indian Act -​ Period of decolonization 1982: Constitution Act including the Charter -​ S. 35, reaffirmation of Indigenous titles, recognizing existing aboriginal and treaty rights 2007: UN declared on the Rights of Indigenous Ppl 2008: Truth and Reconciliation Commission R v Gladue -​ Historical over-incarceration of Indigenous ppl -​ Gladue recognized this systemic discrimination against indigenous ppl and that we should strive towards substantive equality  -​ Principles: 5 categories of law 1.​ Sacred law -​ Flows from spiritual principles, from the creator, creation stories, or ancient teachings -​ Ex. numbered treaties thought of as sacred agreements, as it led to the creation of Canada 2.​ Natural law -​ Legal reasoning derived from close observation of the physical world, “written on the earth” -​ Ex. one could derive legal principle from observing how grizzly bears create landslides 3.​ Deliberative law -​ Law as a conversational process that occurs over generations, based on the body of knowledge available -​ Ex. social capital → results that form a foundation of mutual obligation to meet needs of members of a community 4.​ Positivistic law -​ Legal rules ppl follow based on the authority of person proclaiming them -​ Ex. what an elder says should be the rule 5.​ Customary law -​ Legal practices developed through patterns of social interaction -​ Ex. tobacco to elders 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 rights