BUSI 3705 Lecture 1, Fall 2024 OntarioTech PDF

Welcome to BUSI 3705, Legal Environment of Business, Lecture 1, Fall 2024 Welcome to BUSI 3705, Legal Environment of Business Professor Mima Markicevic 3 Ontario Tech University ackn...

Welcome to BUSI 3705, Legal Environment of Business, Lecture 1, Fall 2024 Welcome to BUSI 3705, Legal Environment of Business Professor Mima Markicevic 3 Ontario Tech University acknowledges the lands and people of the Mississaugas of Scugog Island First Nation. We are thankful to be welcomed on these lands in friendship. The lands we are situated on are covered under the Williams Treaties and the traditional territory of the Mississaugas, a branch of the greater Anishinaabeg Nation, including Algonquin, Ojibway, Odawa and Pottawatomi. These lands remain home to a number of Indigenous nations and people. We acknowledge this land out of respect for the Indigenous nations who have cared for Turtle Island, also called North America, from before the arrival of settler peoples until this day. Most importantly, we remember the history of these lands has been tainted by poor treatment and a lack of friendship with the First Nations who call them home. This history is something we are all affected by as we are all treaty people in Canada. We all have a shared history to reflect on, and each of us is affected by this history in different ways. Our past defines our present, but if we move forward as friends and allies, then it does not have to define our future. 4 Agenda Introductions & Overview of the Course Substantive stuff Law & Business What is “Law”? What is the “Rule of Law”? The Canadian Legal System 5 This Course is a Partnership. I (the professor) have responsibilities and obligations owed to you, to FBIT, and to the University. You, the students, have responsibilities and obligations owed to me, your peers, FBIT, the University…and perhaps others, like your family. Things work best if we communicate well & are kind. 6 Guidelines for our Course Interactions Be kind. Everyone is tired, stressed, and burnt out. You are. I am. So is everyone else. Let’s agree that we will do our best to be kind and gentle with each other. Ask for help…. I want you to succeed. So if you are struggling with something, whether it is course-related or just life, please let me know. …except when the answer is already available in course announcements, Briefing Notes, the course outline, etc. Knowing course admin stuff published in course materials is part of your responsibility. 7 Guidelines, con’t You may not record any session without my explicit permission or take photos/screenshots of any slides, questions (on a quiz, test, exercise, whatever), or whiteboard without my explicit permission. Doing any of these things without my explicit consent is an academic offence. We have already addresses cases along these lines at FBIT. You must attend the session to which you have been assigned unless you have my explicit permission*** For real. But don’t freak out if you need accommodation for one class. Just if you can attend a different section. 8 Course Text Canadian Business and the Law: Dorothy DuPlessis, Shannon O'Byrne, Steven Enman, Sally Gunz; Nelson Publishers; 7th edition. Important note: there appear to be different prices for this text on different websites operated by the same publisher. Cheaper (but the cost may be in USD – it is not clear): https://tophat.com/catalog/law/-/full-course/canadian-business-and-the-law- 7th-edition/4205/ More expensive: https://retail.tophat.com/products/81111 9 Questions about the Textbook Do I need to have the textbook? That depends on your goals for this course. This is a difficult course, and to do well, you will need the textbook to learn the materials. But if you don’t care how well you do and if you attend all classes and take careful notes, then you might be able to scape by with a D. However, there are NO assignments based on questions or projects in the textbook. Do I need the most recent edition? It would be best, However, you can probably get by with an earlier edition if you periodically review the most recent edition to see if any new materials were added since the publication of the text you have. Remember: the law evolves. 10 Textbook Tips Library There are copies at the University Library, and the 7th edition is held on reserve at the Library. Rent a hard copy from Dr Theresa M. I have a limited number of hard copies of the text (various editions) that students can rent for $10: $5 will be refunded at the end of term when you return the text, and the other $5 will be pooled and used to purchase more used copies of the textbook. Because there are only a few copies available, please do not use this option if you can afford the text. 11 Evaluations! Let's Look at the Course Syllabus! 12 Participation/Preparation Activities You need to complete the first Preparation Activity - plus an additional four more. There will be 5 exercises throughout the term. If you complete the exercise, at the end of the term, you will get 2/2 regardless of the score you got on the exercise itself (which is usually a quiz). But I always leave your actual scores on the various activities up because I want you to know how you did. Your score is a good barometer of how well you understand the materials. So the scores are there for information purposes only and will not impact your final grade. 13 Quizzes, Tests & Exams No, I cannot tell you at the present time exactly how many questions there will be or what kinds of questions or what will be covered or anything like that. Not yet. 14 What I can tell you is… Typical quiz and exam format involves multiple choice questions; “select all that are true” type (multiple answer) questions; fill in the blank questions; True/False & Explain questions; and short answer questions/guided case analysis. Midterm & Final will be in-person, on campus. Pro-tip: I have two primers on how to spot legal issues and how to answer a law-type question in the Student Resources module. It will help if you review these resources. The quizzes, midterm, and final exam will all be closed book evaluations. 15 Evaluation, Notes ****You must pass the final exam to pass this course. But don’t freak out about it. Just don’t treat the exam as a joke. Do not book any travel on evaluation dates, especially during the Final Exam period. You will NOT receive accommodation. Consideration is given to students who show significant improvement over the term. 16 Course Format & Stuff Do the readings in advance. You will find extra guidance about what we will be discussing in the weekly Briefing Notes. Contact me via email ([email protected]) Typically, office hours: By appointment and virtual. Please send me a message by email. We will set up an appointment as soon possible at a mutually convenient time. Students who do not show up to their appointments on time will have their appointment cancelled. Course TA This course has a TA. She will be available to email regarding course materials, course questions, course help, and all other things course related. Her email is: ([email protected]) Typically, office hours: By appointment and virtual. Please send her a message by email. An appointment as soon possible at a mutually convenient time will be organized. Students who do not show up to their appointments on time will have their appointment cancelled. Full Disclosure BUSI 3705 is a difficult course. Law is complex. It is more than just a set of rules. It is a specific type of reasoning, and it has its own vocabulary. Plus, we cover a lot of ground. If you do the work – really do the work – you will be fine. Seriously. If you underestimate what is involved in “the work”, you will be unpleasantly surprised. It is common for students to believe that they “get” the law and that they did very well on an evaluation only to receive a very low grade. Why? Because you don’t know what you don’t know. You don’t know the law well enough to know how badly you messed up your answers to the questions. 19 What is “the work”? …or “How do I succeed in BUSI 3705?” Don’t get behind. Do the readings before class in order to get the full benefit of the in- class lecture and discussions. Do the Practice Problems! (There are solutions!) Attend the tutorials (which are not mandatory, but highly recommended). Review the tip sheets for guidance on how to spot legal issues and how to write answers to legal questions. Create summaries of the materials for yourself. There is significant value to putting things in your own words. Ask questions. Ask for help. 20 What is this course all about? Well, law, obviously. Probably business, too. 21 Our Goals Learn to anticipate events that might give rise to legal consequences (Identifying risks & opportunities) Develop a range of possible responses (risk management strategies) Critically assess each possible option. Make recommendations about how to proceed, with supporting reasons ➔ Justifications PLUS Understand the basic legal framework that governs life in Canadian society, as all business and civic leaders should be able to do 22 What will we cover? Legal reasoning, legal principles, and legal terminology – not as much as a lawyer knows, but enough to get by. Learning (some) core principles of law related to: The Canadian legal system The Constitution Contracts Torts Business Organizations And we will cover these topics as we exercise our critical thinking skills 23 Let’s Get Started “Law” Rules enforced by courts/state institutions, principles, and a particular way of thinking about those rules and principles 25 “LAW” Law “resides in the reasoning” ➔An exercise in justifying why we will prefer this person’s interests over that person’s interests in this particular dispute/scenario The rules and principles The way we justify – why and how we apply the rules The process we use The values that matter 26 “Rule of Law” (a)Everyone has to follow the law, including the police, government, judges, and public officials; (b)The law must be publicly promulgated (it must be published), fairly applied, equally enforced & independently adjudicated. (c)We settle our disputes on the basis of pre-determined principles through the courts (i.e., with law), not with force; and (d) Society governs itself through law (not arbitrary dictates). 27 What does law do? We are all individual humans with inherent dignity and the capacity to exercise autonomy* over how we live. But we are also inherently social and relational beings: we need each other and important parts of who we are flows from our relationships with others. Law provides a framework for how individual, autonomous humans can live together productively in society. *Autonomy: the idea that we get to choose for ourselves how to live our lives and define for ourselves what a “good life” means. 28 Example Dave owns a small bakery that is located across from a big distribution centre owned and operated by Evyl Inc. When Evyl Inc’s largest transport trucks (the 18-wheelers) pull into the distribution centre, they have to pull into Dave’s parking lot in order to back into the loading docks. The trucks create a lot of dust and noise, which is not conducive to keeping customers in the bake shop. Plus, the weight of the trucks is starting to damage the pavement of the parking lot, which was not designed for 18-wheelers. What’s more, sometimes there is a line of trucks waiting to offload or upload at the distribution centre. The trucks line the street, making it very difficult for customers to get into and out of Dave’s parking lot. What can Dave do to protect his business and his property in these circumstances? 29 Dave’s Options (a non-exclusive list) Where and how does the law intersect with these options? Dave can accept that Dave can burn Evyl Dave can consider Evyl Inc is more Inc to the ground. whether the law might powerful than he is help – and whether and that he is stuck institutions like the dealing with their courts might ensure trucks in his business. that just because Evyl Inc is bigger and more powerful, Dave’s rights and interests will still be protected. 30 The Intersection of Law & Business Law fundamentally shapes the risk environment for business. Law: Imposes boundaries and requirements; Enforces obligations owed to others and to the state; Protects rights; Creates opportunities; and Gives us tools for managing risk. 31 Dave and the Law How does knowledge of the law help Dave in this situation? How can it help Dave identify and work through his options? How does Law: Impose boundaries on how Dave can respond? Enforce obligations owed by Dave and Evyl Inc to each other? Protect Dave’s rights? Give Dave remedies to protect his rights? Create opportunities for Dave? Give Dave tools for managing risk? 32 A Peek at the Law The Dispute: The Law: The Resolution: Evyl Inc is driving over Tort of trespass to land Dave will win the case and Dave’s parking lot. Dave occurs when the defendant be entitled to a remedy, does not want Evyl Inc on improperly and possibly including (a) his parking lot. intentionally interferes with damages for the repair to the plaintiff’s property. the physical damages to Evyl Inc wants the freedom the parking lot, and (b) an to drive its trucks. injunction prohibiting Evyl Dave wants the freedom to The law tells us how we Inc from driving over the keep people and trucks off will think about the rights in parking lot. his property. questions and the reasons for WHY we will protect Dave’s rights and not Evyl’s rights in this situation. 33 The Rule of Law in Dave’s Case What aspects of the Rule of Law are evident in Dave’s case? Consider: Dave’s options for responding to Evyl. Can Dave respond however he wants? Why not? The outcome: does “might make right” here? Why not? Dave has the right to protect his property. Where does that right come from? How does law protect Dave? 34 Let’s Dig Into the Law! 35 Definitions An “action” – litigation, a court case brought through the civil courts “Cause of action” – the legal grounds for suing someone “Plaintiff” – the person that initiates a law suit, the person that is suing “Defendant” – the person who is being sued “Liability” – legal responsibility 36 Definitions, con’t “Judicial” – refers to judges (the judicial system = the courts; judicial decision = decision made by a judge) “Judiciary” – a collective reference to judges “Jurisdiction” – have the legal authority to do something 37 The Basis for the Lawsuit Dave and Evyl Inc are located in Ontario, which is a common law jurisdiction Where will we find the law governing the substance of Dave’s claim? What is the basis for Dave’s action? What area of the law is this case about? 38 Public v. Private law Public Law Private law Regulates our lives in the Governs our private lives public square, as members of (parts of our lives that don’t a shared society affect order in society as a whole) Focuses on the rules necessary to making our Governs relations between shared society work, and individuals (as opposed to therefore mostly governs the individuals’ relationship with relationship between the state) individuals and the state Egs. Tort and contract E.gs: criminal law, constitutional law, tax law, admin law, immigration law Juridical Systems in Canada “Juridical” – related to the administration of justice/the courts Canada – Tri-Juridical The Common Law system The Civil Law* system Indigenous legal systems *The term “civil law” also means private law proceedings, as in private law, not public law. 41 Common Law Systems Historic origin: courts of England Courts of Law versus Courts of Equity Note: merged in Ontario in Judicature Act (Ontario), 1881 Ontario now has a Superior Court & a Court of Appeal, plus the Ontario Court of Justice Small Claims = division of Ontario Court of Justice; no equitable jurisdiction Primary significance of Equity for business: Availability of certain remedies; concept of fiduciary duty; estoppel in common law; protection of reliance interests 42 Where is the law? 43 Sources of Law: A Hierarchy Constitution: s. 52: “supreme law of Canada” Statutory Law: made by our legislation democratically-elected representatives Common Law: Judicial decisions, incl equity Rule of Law: The Constitution Rule of law principle: “everyone must follow the law, including the government, the courts, and public officials” The Canadian Constitution sets out the law for making law. Any & all authority that a government or a court has in Canada is rooted in the Constitution, which the SCC has described as a “Living Tree”: It is rooted in core principles. It is a “living document”: its meaning continues to grow. 45 This Photo by Unknown Author is licensed under CC BY-NC Constitutional Supremacy Primacy of Constitution of Canada 52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11, s. 52(1). 46 For our purposes…. We will focus on: The division of powers (federalism, ss. 91 & 92), and The Charter of Rights and Freedoms 47 Division of Powers Canada has a federal system of governance Power to make law is divided between provinces and the federal government Constitution gives governments the jurisdiction to make laws, but also limits that jurisdiction to certain areas/topics/ “subject matters”. Jurisdiction: intra v. ultra vires “Intra vires”: within the jurisdiction of “Ultra vires”: outside the jurisdiction of Sections 91 & 92 Ss. 91 & 92 contain Division of Powers S. 91: federal government powers S. 92: provincial government powers Cities & Municipalities No powers directly given to cities and municipalities under the Constitution Provinces have the Constitutional authority to create cities and municipalities and to delegate powers to them Common powers delegated to cities and municipalities: Property-related matters (zoning) Regulation of local businesses (e.g., licensing of restaurants) Property taxes to pay for operating expenses 51 Canadian Federalism 52 Federalism: Who Regulates What? Federal government Provincial governments Stuff specifically listed in s. 91 (e.g., “Property & civil rights” – banking, currency, international & captures a lot of ground, interprovincial trade, shipping & including contracts, torts, navigation), copyright, & postal manufacture of goods within the services). province & sale of goods/services “Trade and Commerce” – but only within the province with respect to general regulatory “Matters of a merely local or schemes (not industry-specific unless it private Nature in the Province” is already in s. 91) that are necessary to – industry & commerce purely facilitate commerce across Canada within the province “Residual power” – anything that isn’t Education identified in ss. 91 or 92, e.g., aviation 53 Canadian federalism Section 91, Federal Section 92, provincial government powers government powers (examples) (examples) currency hospitals national defense property and civil rights criminal law with the province banking administration of justice postal service & local matters telecommunications incorporation of provincial corporations International trade Municipalities Residual power Education Intra vires v. Ultra vires: Federal Government Powers. S. 91 Ultra Vires Intra Vires Regulation of business Criminal Banking Elementary schools law Zoning bylaws Copyright Airports Sale of alcohol within a province Manufacturing within a province Int’l, inter-provincial trade Example: The Margarine Reference FACTS: In 1949, the Federal Government passed legislation designed to protect Canada from a very serious danger: margarine. The Dairy Industry Act prohibited the importation of margarine into Canada; the manufacture of margarine within Canada; and the sale of margarine anywhere in Canada. Did the federal government have the constitutional authority to pass this legislation? Federal government argued that the legislation fell within the criminal head of power – the Dairy Act was meant to prohibit criminal activities related to margarine. 56 The Margarine Reference Decision SCC HELD: “Pith and substance” – what is this legislation really about? Not criminal issues. This is not “criminal law”. It’s economic regulation. And so… Prohibition on importation: intra vires (trade) Prohibition on sale & manufacturing: ultra vires (property & civil rights) 57 The Original Double-Double Doctrine Important legal principle in our system: “concurrent jurisdiction” (or the “double aspect” doctrine): Since a subject matter can have more than one dimension/aspect, both the federal and the provincial governments can pass valid legislation over the same subject matter so long as they are each legislating with respect to an aspect or matter that falls within their own respective jurisdiction 58 Concurrent jurisdiction Law and regulation of wireless telephone contracts Prov: Feds: consumer telecom: protection: mobile property services and civil rights Paramountcy But what happens if the federal and the provincial laws clash? Doctrine of Paramountcy: if there is a real conflict between two intra vires pieces of federal and provincial legislation, then the federal law prevails. S. 121: No trade restrictions between provinces “121. All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.” 61 What is a trade restriction? “I think that, like the enactment I have just quoted, the object of section 121 was not to decree that all articles of the growth, produce or manufacture of any of the provinces should be admitted into the others, but merely to secure that they should be admitted "free," that is to say without any tax or duty imposed as a condition of their admission. The essential word here is "free" and what is prohibited is the levying of custom duties or other charges of a like nature in matters of interprovincial trade.” Gold Seal Ltd. v. Alberta (Attorney-General), 62 SCR 424, per Migneault J. 62 Charter of Rights and Freedoms Do businesses have Charter rights? Yes. But also no. Also, sometimes and it depends. Aw, C’mon! Throw us a BONE here. 63 It depends on… Is it a protected activity or attribute? → Which section of the Charter is engaged? The Charter does not (a) protect economic rights, or (b) apply strictly to private persons (not Government) How is the business being conducted (personal capacity versus corporation) & does that kind of business structure enjoy the rights at issue? Does the impugned legislation violate the right? If the right is violated, can the violation be justified under s. 1? 64 Section Right Protectee Example S. 2(a) Freedom of Religion “Persons”, including Big M case: “Lords Day” corporations act was struck down in Ontario So why did Edwards Books lose its case? s. 2(b) Freedom of Persons, including Irwin Toy, tobacco cases: expression corporations SCC holds that advertising by corporations is a protected form of speech, subject to reasonable limits s. 6(b) Mobility rights Citizens & Permanent Black v. Law Society of AB: Residents government cannot prevent an individual from earning living across Canada s. 15 Equality rights Individuals (not Andrews case: province corporations) cannot discriminate by restricting practice of law to Cdn citizens Protected! Not Protected! ✓ Commercial speech Purely economic (ads, products, no interests compelled speech) Right to a business ✓ Equality for individuals licence ✓ Mobility for citizens & Corporation’s right to residents equality or mobility 66 A Charter Checklist of Limitations Must involve a challenge to a governmental act/rule/decision (s. 32) Must involve a protected right Economic rights & property rights are not directly protected Person bringing the challenge must have “standing” – must hold the kind of right involved Corporations have some rights, but not all Even if the government has breached a right, the impugned (challenged) act might be “saved” under s. 1 as a reasonable limit 67 Let’s do the Charter Two-Step Step 1: Is there a prima facie Charter violation? Is there a government act that violates a Charter right? Step 2: If so, can the legislation be “saved” under section 1? Is the law a reasonable limit on our rights? Law must limit rights as little as possible, in a proportionate way (the more important the purpose, the more infringements we will accept), and in a rational way. 68 Can the gov’t require gas stations to put this sticker on their pumps? What rights, if any, are engaged by this sticker legislation? 69 S. 2(b), Freedom of Expression “Everyone” – includes corporations “Freedom of expression” – includes commercial speech 70 Important Element: Reasonable Limits Oakes Test (a) Is the goal of the legislation “pressing and substantial”? (b) Is there proportionality between the goals of the legislation & the means used to achieve those goals? (a) Rational connection (b) Minimal impairment (c) Final balancing 71