Law midterm 1

What is special about the urzi case?

* "attributable to" (caused by) - does the judge or jury think the 2 events are connected: original negligence and second fall? - Occupier's Liability Act not applied retroactively - Chain of Causation not broken with second fall long after and far from the original negligence

What are the costs of the trial procedure?

Costs includes not only lawyers fees but Judge's salary, Court reporter, courtroom caretakers, etc. Those costs of the legal system must be paid by either tax payers or users * in Ontario we do both All lawyers fees paid by the user - filing fees also paid by user as partial reimbursement to Government (e/g. Judges' salary)

What's included in a contract law?

Need not be in writing, but better in writing : - Easier to resolve dispute - Less likely to have a dispute Require for a contract (KN): - An offer - An acceptance of that offer *essential but not necessarily sufficient Offer: tentative promise by one party (Offeror) subject to a condition on the part of the other (Offeree) through civil courts

trier of fact

a person or a group of persons determines facts in a legal trial

What do negligent statements depend on?

accuracy of the statement (not talking about injuring a reputation)

What is a bilateral contract?

both parties have future obligations

What happens when you make a contract void?

more likely to injure 3rd parties

What is avoir tort?

to be wrong

When is the 'mail rules' forbidden?

mail acceptance becomes a counter-offer *Revocation by mail effective only when and if received

How do the parties at a distance communicate with regards to a contract law?

mail rules

What is voidable?

binding but may be repudiated (refused to accept it -> termination)

What 2 issues is a tort always concerned with?

liability remedy (usually money)

What's included in the administrative tribunals?

liquor control, labour relations

What's an exception under evidence act?

business records permitted without the author testifying

What are the 3 things that the occupier's liability depend on?

*depends on category of visitor 1. Invitee invited take reasonable care to protect guest from injury from hazards known of or should know of 2. Licensee occupier's permission take reasonable care to protect guest from injury from hazards actually known of 3. Trespasser cannot recklessly disregard their well-being

What are 3 things special about disclaimer in the standard form of contract?

- Are legal - Parker case: know writing that's there (reasonable notice of writing) - Wilson vs. Blue Mountain Ski Resort (Courseware): read it (reasonable notice of wording)

What are 2 exceptions to an acceptance in a contract law?

- Previous contract - Acceptance must be communicated...

What's the burden applied by the trier of fact (either judge/jury)?

Jury: 12 persons for criminal - 6 for civil cases *cases are decided within the adversary system

What is special about the unilateral mistake?

1. About an essential aspect - (if you're going to buy the textbook for next semester since you're taking the course, then it's binding so it's valid even though you don't need the textbook for it) *Valid anyway 2. About the identity of the other party 3. nature of a signed contract (ie. mistake about the nature that you signed) -> non est factum (triggers this) *void * supreme court of Canada in the Harris Case (1982) - you can still get out of it... if you're not careless but not too careless 4. mistake about the wording of an offer *cannot accept an offer if you know it's mistakenly worded *if void, injured party has no choice - Judge says contract avoided in Harris Case - other cases - contract is void

What are 3 types of mistakes?

1. Common (both share the same mistake) - both mistaken samely, both mistaken about the same thing 2. Mutual (both mistaken but differently) - such as one thinks is blue and the other thinks its green, but it's red 3. Unilateral (only one mistaken) - only one party is mistaken... the other party isn't mistaken at all

What are the 3 stages that each witness goes through in a trial procedure?

1. Examination in chief (questioning by friendly side; they explain) 2. Cross-examination (questions by the opposition; other side asks question) 3. Re-examination (by the friendly side damage control - friendly side counters)

What are the 5 exceptions to discussion deals?

1. Infants (under age of 18) - voidable by the infant (they can cancel the contract and get out of it - not retroactively) Except: beneficial service contract for a necessary *even for necessary... infant bound to pay reasonable price 2. Lunatics & Drunkards lunatic: cannot rationally decide drunkard: cannot rationally decide law is same as for infants except more difficult to prove & must show other party knew of disability at the time of the contract 3. Bankruptcy - may affect capacity 4. Aboriginal Peoples - Governed by the Indian Act - Cannot enforce contract against property on the reservation - No capacity nor ability to waive protection - Suffer a bargaining disadvantage & a capacity limitation 5. Legality - contract w/ illegal purpose - therefore, you should void it

What are 2 weaknesses of the legal system?

1. It makes mistakes 2. It is expensive

What are the 3 parts of Ontario Court of Justice?

1. Judges are appointed by the province 2. Family division (cannot grant a divorce or deal with property), exists only in areas where there's no unified family court 3. Criminal court - everybody charged w/ anything goes to the court first, such as shop lifting

What are the 3 parts of administrative tribunals?

1. hired by the government & can be fired by the government 2. outside of court structure 3. conducted by the civil servants & not judges

What are the 5 components to illegality?

1. if an object is given more criticism.. then it's more likely is the object to be illegal 2. society's values changes 3. knowledge of illegality becomes irrelevant 4. if the contract is illegal... there's no treatment 5. contracts that are prevented from trading

What 4 things terminate an offer?

1. Lapse a) If either party dies or becomes insane before acceptance b) End of time specified c) if none, at the end of a reasonable length of time Barrick v. Clark - Supreme Court of Canada Consider: - Conduct of the parties AND - Industry norm Preventative Law Offers should always specify how long they are open 2. Revoked - may be revoked any time prior to acceptance - Even if offer states it will be open longer - Unless time specified under seal - Or an option by separate contract 3. Rejection - Kills the offer 4. Counter offer - Kills the offer - Must itself be an offer as opposed to discussion or enquiry - Qualified acceptance is a counter-offer

What are 5 things you need to understand in each case?

1. Need to be able to identify either by case name/ subject matter 2. Need to answer 5 questions: Who's suing who?, What is the cause of action (area of law)? 3. What is being claimed? - *damage is the key word 4. Who won? 5. What are the key features that led the case? - what's the turning point in the case? - what is the precedent value of the case? (ie. value of previous court decisions)

What are 3 parts of evidence rules?

1. Opinion evidence must be given by a qualified expert such as a doctor, accident reconstructionist, etc. 2. Privilege any communication between lawyer and client 3. Hearsay (repeating what someone else told you if...) cannot repeat what someone else told you for the purpose of proving that statement (unless statement was made by one of the parties themselves)

What are the 4 steps of a civil case in Ontario?

1. Plaintiff initiates the case by filing a Statement of Claim or an Application *Both set out what is being claimed and why 2. defendant defends the case by a statement of defence (or a response to Application) *Plaintiff may file a reply (if they didn't receive one) *these documents constitute the pleadings because they plead the case 3. appellant (ie. person who applies to a higher court to reconsider a decision made in the lower court) has right of appeal 4. respondent responds to the appeal

What are the 3 parts of a trial procedure?

1. Plaintiff's case (presents a case first) 2. Defendant's case (if any - presents case if they want to) 3. Plaintiff's reply (if any - if the defendant testifies)

What is special about a common mistake?

1. Regarding existence of subject matter - (you both look at the mistake and see if the subject of the contract matter exists or not? Both think the car contract exists but it doesn't!) *void - so the contract is void as a result 2. Subject matter exists but other common mistake - (both think it's round, but it isn't *Voidable - it does exist, but we just mistaken it... not valid till its repudiated 3. Subject to "typo" case - make a mistake (not in what you agree to).. You make a mistake in writing down what you agree to... such as the date you wrote down * rectification - court corrects the mistake in writing, but the change the way you mistakenly didn't agree to it, such as you wrote it was $40,000 but the court changes it to $50,000... court will say you lying if you argue back

What are the 4 components that make up the court structure?

1. Supreme Court of Canada - Ottawa, composed of 9 judges, hears only appeals 2. Federal Court of Canada - Ottawa, deals w/ matters of federal jurisdiction (e.g. taxation) 3. Ontario Court of Appeal Toronto, 3 judges sit for a case, hear major criminal and civil appeals 4. Superior Court of Justice includes: Divisional court, criminal judges court, trial court, unified family court & small claims court

What are the first 5 other torts of 9?

1. Trespass - intent doesn't matter 2. deceit - deliberately lied - intending to mislead the other side/ accidental falsehood, inaccurate statement 3. nuisance (only tort w/ an option) - both private and public - Public nuisance involved interference of public use of lands - Private nuisance includes unlawfully interfering with private use of land - Court may grant injunction plus damages or just damages - Based on balancing of interests 4. Assault & battery - Deliberate, harmful - It doesn't have to be intentionally harmful 5. False imprisonment - Unlawfully restraining one's freedom of movement no reasonable means of escape - May amount to a false arrest if there is intention to lay criminal charges Police powers: - Reasonable cause to believe crime occurred - Reasonable cause to believe you did it Private Citizen: - Proof that a crime occurred - Reasonable cause to believe you did it

What happens if you enter a contract by mistake?

1. Void (from the start) 2. voidable (valid but cannot be repudiated) 3. or binding anyway *not considering mistake of law or changing one's mind (ie. changing something you wished you haven't done.. it's about factual error)

What 2 questions does the burden of proof raise?

1. Who has it? 2. What is the extent of the burden?

What are the 5 parts of substantive area of law?

1. criminal 2. constitutional (eg. separation of powers between federal & provincial governments + charter of rights freedom) 3. administrative (eg. civil servants administer government policy) 4. private (eg. any dispute between individual & corporations) 5. status (eg. corporate, family, immigration)

What are the 2 things that will give you a right of review to divisional court?

1. denials of natural justice 2. tribunal (court) goes beyond the final power to make legal decisions and judgments

What are the 2 issues that the burden of proof typically arises with regard to?

1. liability 2. damages *Plaintiff must prove his/her case on the balance of probabilities for both liability and damages *Both issues must be decided, regardless of the decision on the other in case of an Appeal

what are 2 areas of laws?

1. procedural - rules of practice (eg. what court you go to & what papers need to filed...) 2. substantive

What are the 2 sources of law?

1. statutes (federal/provincial)

What is a contract law?

A promise or set of promises which the Courts will enforce

What are the other 4 torts out of 9?

6. Malicious Protection - Causing criminal charges - no honest belief that crime was committed eg. showing that a customer is intending to steal - Usually arises in the case of police harassment 7. Intentional Infliction of Mental Suffering - Usually arises in the case of a practical joke - Liable only for reaction one might expect * an exception to the usual rule example: Returning to the Hagerman Case with the issue of remedy; - law - take your victim as you find him/her applied to the facts of that case, she would recover: - Loss of earnings - Expenses - Damages for Pain and Suffering 8. Defamation Libel - when you slide it & slander - is when you speak it (some kind of reputation) Unjustified injury to Plaintiff's reputation - actual reputation loss (i.e. heard or read) - likely to believe - Burden on Defendant to show one of four possible defences Truth (if you said if it's true - completely = not defamation) ... for example, if you make an announcement someone cheated on the test with truth, it's not defamation a) privilege - parliamentary debate (calling each other names and making allegations) - sworn testimony b) qualified privilege - honest belief in the accuracy of statement (e.g. letter of reference) - specific wording is important, for example in letter of reference c) fair comment - matters of public interest - Published by an editor - honest belief in both opinions and facts 9. intentional interference w/ contractual obligations (Lumley vs. Gye) - contract for the singer to sing for the planner... defendant came and enticed the singer away (distracted the singer) - Amount recovered against W and against the defendant likely the same but not necessarily - different legal principles - when original contract interfered with, no need to include any "hooking up" - intentional - must know about contract

What's partial indemnity costs?

Amounts to approximately one - half of what's actually been incurred, or perhaps slightly more

What are the court apportions fault?

Apportions damages on the same ratio Because of the Negligence Act May result in the person who is least negligent paying out the most

What's necessary in the Dickson Brothers v. Woo case under exception 1? What does necessary mean in this case?

Both are a contract & a tort car rental isn't important different than a honeymoon *necessary in this case means: customary, traditional... vs. important

What is special about a mutual mistake?

Both are wrong - one thinks its red and the other thinks its green *example: Lindsay v. Heron (eg. called eastern Cafeterias of Canada)

When will the burden shift from the defendant to the plaintiff?

Burden may shift if Plaintiff unable to prove breach of duty of defendant (fails to fulfill his/her duty of care in the situation)

What are the 3 benefits of stare decisis?

Can predict outcome of case Know the governing rules on a day-to-day basis Earns public respect

When is a contract formed under 'mail rules'?

Contract formed when mail acceptance dropped in box if: - Offer states acceptance may be my mail - Offer was by mail * Otherwise, acceptance valid when received (delivered to the place of business or residence of the offeror)

What are the evidence rules?

Decisions made based on evidence submitted by each part subject to several rules

Where's the trial discovery not found?

Discoveries not available in Small Claims Court *Compulsory settlement conference before Judge instead

What are the 2 issues with the Merchantile Law amendment act - section 16?

Does acceptance include an agreement to accept? Expression must be by the person giving the "discount"

What's the discovery part in the machinery of justice?

Each party entitled to examine other party and their documents under oath before trial *No Judge present *Avoids surprise (trail by ambush: a piece of evidence or a witness that has been concealed from the opposing side in a court case) and provides disclosure *Tests credibility - makes sure that you don't give 2 answers under Oath, such as the time you signed the contract: 6/9 pm

What does the substantial portion of costs of the legal system (ie. not recoverable) lead people to do instead..?

Encourages settlements Encourages people to use legal system for serious disputes (not perfect & expensive) Encourages preventive law

What are 3 parts of the 'intention to create legal obligations'?

Expressions not to be taken literally Presumption people mean what they say Care must be taken

Which of the judges is appointed by the federal government?

Federal Court of Canada, Ontario Court of Appeal, Superior Court of Justice

What is the contributory negligence pyramid?

First part of the pyramid - the arena has negligence or not? Second part of the pyramid - you can't have contributory negligence if you don't have negligence

Define costs of the trial procedure

Following the Court's decision a Judge decides whether the winner gets any some or all of his/her legal expenses

What are 3 parts of the standard form contract?

Government regulation - eg. asking the train person when to take the train strict interpretation if it's an individual not knowing the term's existence

Does the winner get compensated by the person who doesn't win?

If they don't have enough money to pay, you don't get any compensation... so you do investigation to see if they have any money *If judge decides the winner gets compensated... usually lawyer fees, judge's salary

How do you determine whether the name used is a false name or a non-existent person's name?

If you don't the person... then it's non existent. If you do know the person, then it's false and voidable.

What is special about the hagerman's case?

Issue: negligence - was the arena, owner responsible for the pucks lying around? Facts - go to the facts second once you establish the issue Negligence - occupiers' liability act is responsible - Duty to take reasonable care to protect guest from injury if guest lawfully there - Issue then becomes whether sufficient or insufficient protection given to spectator Compliance w/ Industry Standard: - Industry doesn't define its own standards for the case - court determines it * evidence of non-negligence but not conclusive

What's an undesirable precedent?

Judge has a bad day, you can have an undesirable precedent Courts help to distinguish cases ... no 2 cases are the same

What does the discovery part lead to?

Leads to settlements (some people are offended by settlements... if you don't promise to go to court... usually 80% of cases are settled after compromise)

What is the vicarious liability?

Liability of employer for the act of the employee Done during employment; both jointly and severally liable

What is an arbitration?

Makes a decision & must be agreed upon *non-binding - mediation suggests outcome *binding - suggestions are made

What are the 10 things included in a contract law?

Need not be accepted unfavourable public relations false advertising Consider self serve gas bar - Self-serve display not an offer, but an invitation to receive an offer Offer made to general audience not an offer Unless to a designated individual or group of individuals Consider the intention of the person making the "offer" Offers must be communicated cannot accept an offer if you don't know that it exists Same applies to crossed offers

Which one is a specific tort?

Negligence - must relate to accidental or unintentional harm

What are 2 exceptions to the fault concept?

No fault Motor Vehicle insurance under Insurance Act (ie. it doesn't matter who's at fault of the vehicle collision, both parties handle the matter through the insurance company) Vicarious liability

What are the 3 parts of the 'laws regarding rescue'?

No general duty to rescue If rescuer injured, can recover against original wrongdoer Person being rescued can in some cases successfully sue the rescuer if additional damages arise

Can a parent recover money from an infant in a contract? Can you repudiate out of the contract?

No... - unless if purpose is necessary - devoted to necessary *may repudiate the contract if the necessary is ordered but not delivered

What is non est factum?

Not my deed, or my doing

What happens when a defendant's breaches a statute?

ONLY evidence of negligence (failure of proper care of doing something), not conclusive (final)

Who governs the occupier's liability?

Occupier's liability act

What is contributory negligence?

Occurs when both parties are responsible for injury by reason of their negligence (failure to take proper care in doing something) happening at the same time

What is a seal?

Operates as a substitute for consideration Makes all questions of consideration no longer relevant Good preventative law

What are 4 other consideration for arbitration and mediation?

Parties choose their own process & procedure Cannot pick your own judge, but can choose own mediator/arbitrator Time and location - court call you at a certain time to come No specific certification required for mediator/arbitrator

What is an alternate dispute resolution?

Performed by many private individuals Usually motivated by cost Major arbitration (inequality in an agreement)

Who performs alternate dispute resolution?

Performed by many private individuals, including Brant-Wentworth Mediation and Arbitration Services Inc.

What is a mediation?

Points out options, interests

Fault Concept

Shift to the person who caused the harm by doing something wrong since they did something wrong

Which judge is appointed by the government of Canada?

Supreme court of Canada

What is special about the territorial law in the contract law?

Territorial law that applies is location of formation of contract

What are the three parts of chain of causation?

Time Geographical distance Intervening negligence

What's special about the mills vs. gills case (re. doctors)?

both warnings (ie. injunctions) & damages five miles for five years

What happens when competition is gone in the mills vs gills case?

You're still held valid because... 1) Reasonable between the parties: - Doctor can still earn a living - Reasonable radius of clients 2) Not contrary to the public interest: - Service still available to the public - Without an increase in price $$

What is injurious reliance?

a cause of action if a party relies on a gratuitous promise and suffers a loss *not recognized in Ontario

What is the relationship between a contract and an agreement?

a contract to make an agreement is not an agreement until you do

Statutes

a written law passed by a legislative body (can be federal or provincial) - need to know the names of all statutes, but not the section numbers - must be applied the court as they reflect the will of people ambiguous because: poorly drafted, deliberately left open to accommodate flexibility

What's the civil burden of proof on the plaintiff?

balance of probabilities

What's the criminal burden of proof on the crown?

beyond reasonable doubt

What is contrary to public policy?

bigger than criminal

Can the minor attain the majority in an ongoing contract or no ongoing interest?

a) if it's an ongoing contract.. then you must dismiss it right away b) if it's not an ongoing interest... then it's not bound unless it's made official & it must in writing under the statute of frauds

What is a possible criteria for a tort?

always shift the law if you can do it to the person causing the harm (usually the government/ tax payer)

What is an arbitrator?

an independent person or body officially appointed to settle a dispute

What are 2 things common about mediation and arbitration?

confidential (while court proceedings are open to the public) less confrontational... less formal, more friendly

Which courts are the jury available for?

criminal and trial court

What are 3 other common terms?

crown adjudicates, crown prosecutes, accused (defendant)

What is a unified family court?

deals in unified way with a family

What are the 4 parts of legal analysis?

deciding if a case is different and what makes a difference Decisions from other provinces: law that applies to the agreement that you make... Quebec law/ Ontario law Decisions from England: commonwealth... law for software programs that are incorporated Decisions from USA: ignored, since a lot their laws are made by the jury... might look at to understand the philosophy/ logic

Can arbitration be binding or non binding?

depending upon the agreed upon process

What's necessary in the Ryder Case under exception 1?

depends on infant's state of life

What is the negligence act?

duty to yourself - Court apportions fault (diagram*) - leads to apportions damages based on that apportionment

basic presumption

everyone assumed to know every law

What is negligence?

failure to take proper care in doing something

What is the trial court?

general jurisdiction is authorized to hear some type of civil or criminal case that is not committed exclusively to another court

What is a 'mistake of fact'?

getting the other party to enter the contract

What is breach of duty?

happens when one fails to fulfill his/her duty of care to act reasonably in some aspect

implication

law is based on false assumption -> needing to know the law -> need to know the question before you know the answer

adversary system

legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth and pass judgment accordingly

What is void?

legally invalid from the start

Should the alternate dispute resolution be agreed to by both parties?

it must be agreed by both parties after or even before dispute... but it is not required

What happens when you are criticized in the burden of proof?

may reward party with most expensive lawyer *lawyers are now allowed to charge contingency fees (ie. if the plaintiff wins the case/settlement between lawyer and plaintiff, then the lawyer is paid) *still cost in preparation of presentation to panel of judges

What don't you have about arbitration?

no right of appeal... but there's always a right of appeal in court processes

Common Law

system of precedent as distinct from civil law law evolved through the Queen's court for the common people vs. court of equity administered through the church

Who pays the costs of the legal system?

tax payers or other users - Ontario does both

What is a unilateral contract?

one party performs before the other

What are 3 things that the plaintiff must prove about the defendant when they file the case?

owed a duty to the Plaintiff to refrain from the conduct in question (Defendant did what Defendant should not have done, or Defendant did not do what Defendant should have done) defendant broke that duty defendant's actions caused that injury

What is causation if the burden is imposed on the plaintiff?

plaintiff needs to prove that defendant's actions caused the injury Practical need to draw reasonable factual liability limits

What should an acceptance be in a contract law?

positive form

precedent

previous court decisions

What is one business negligence topic?

product liability Duty of manufacturer toward consumer to manufacture carefully No contract remedy reason of privity (closeness.. ie. close relationship)

What is 6 parts of consideration?

promise you make for the promise you receive contract w/o consideration isn't enforceable in court adequacy is not a consideration past consideration is not a consideration consideration isn't valid if you agreed to something you legally already have to do

Law

regulating of society's conduct through the use of rules that a court will enforce

What operation is triggered if the burden shifts to the plaintiff? What 2 things must trigger the operation?

res ipsa loquitur (act speaks for itself) a. Show probable fault of the plaintiff b. Facts to explain events only w/ the knowledge of the Defendant

What does mediation not always have?

resolution... but does resolve many issues in most cases

What does the divisional court do?

reviews either of the 2 options hear the minor appeals & lesser appeals conducts reviews of administrative

What is the voluntary assumption risk?

risk = 0 - Of injury - Through negligence of Defendant - If the plaintiff assumes the risk, then the Plaintiff recovers nothing

What is standard of care?

standard of people & corporations are held by the court to act of a 'reasonable person'

preventive law

steps to avoid legal difficulties

What's necessary in the Johnston vs. Marks case under exception 1?

supply that existed from before

What's a stare decisis?

the legal principle of determining points in taking legal action according to precedent (an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances)

What is hindsight?

understanding a situation after it has happened

civil law

used in Quebec all laws set in civil code need to look at court decisions to interpret code -> disputes between individuals in our system

What is a disclaimer?

wording on the ticket

Statute

written law passed by a legislative body

What is a tort?

wrongdoings that are done by one party against another *As a result of the wrongdoing, the injured person may take civil action against the other party.

Is remedy always an issue?

yes

What is the tort aspect of the Ryder case and the Dickson Brothers v. Woo case?

you can't get out of a contract defence by suing the tort the tort is committed while carrying out the main purpose of the contract had lied about his age (infant doesn't have the ability to speak up) can't lie no liability on parent.. unless agent of the parent