Law 201

Judges are bound to follow statements of principle determined by higher courts in the same jurisdiction, and decisions from the Supreme Court of Canada

Stare Decisis

Primary form of legislation

Statutes

- A statute is first introduced as a bill in either the house of commons or in the senate - Public Bill: 1) Government bills 2) Private member's bills - Private bills: Introduced and sponsored by government, opposition or senate member and deals with private matter - A federal bill requires 6 readings, 3 in the HOC and 3 in the Senate, followed by Royal Assent

Statutes and Bills

Liability even though acted reasonable, no proof of fault

Strict Liability

- Rules of criminal liability - Crown must prove an act element (actus reus) and a mental or fault elements (mens rea) - Must occur at the same time

Substantive Criminal Law

Core rights and obligations regulation behavior

Substantive Law

- Least serious - Tried by a provincial court judge - No jury - Up to a fine of $5,000 and 6 months in jail - 6 month limitation period - Public nudity

Summary Convictions

A civil wrong between individuals for which the victim can get some legal remedy in the private law system Examples - Accidents - Medical malpractice - Environmental disasters

Tort

- Contract law - Property law

Tort Law

Assault: psychological tort not requiring actual physical contact, if the plaintiff is threatened and apprehends harmful physical contact from the defendant, and in the end defendant has the mean to carry out the threat, assault has occurred Battery: requires the actual occurrence of harmful or offensive physical contact False imprisonment: When one person totally restrains the movement of another person

Trespass to Person

Governs relationship between persons

Private Law

Regulate who has shares

Private companies:

Rules relating to process

Procedural Law

A person who wants to sell her property agrees to finance the purchase herself, because the purchaser can't pay the full amount at the time

Agreement for Sale

Every piece of property that is owned was one unwoned

Alienability

- The main functions of contract: to permit people who are strangers to one another to make non-simultaneous exchanges

Contract Purpose

Birds of a feather flock together- does the person riding the horse fit the theme?

Ejusdem Generis

Acting unreasonably, an accident

Negligence

- The accused has the right to make a full answer and defence in response to criminal charges

Right to full answer and defence

Include the right to make reasonable use of the water near a property

Riparian Rights

with and, the phrase is conjunctive and all items in the list must be satisfied; with Or, the phrase is disjunctive and any one item is good

And and Or

If the marriage is void - Non consummation

Annulment

Include special terms called conditions precedent which delays the start of performance of the contract until a defined event occurs

Contingent Agreements

An agreement that the law will enforce

Contract

-Detention has been defined under both sections 9 and 10 to include detention with respect to a demand or direction - A detained person has the right under S.10 to seek habea corupus and to be released if the detention is not lawful

Arbitrary Detention and Imprisonment

Work for 10 months

Articling

When the person charged has been previously acquitted with respect to the charge

Autrefois Acquit

Available when the person charged has been previously convicted with respect to the charge

Autrefois Convict

the accused must: 1) Obtain disclosure of all the Crown's relevant evidence against the accused 2) Have a pretrial hearing conference 3) Discuss how to plead to the offence 4) Consider whether a plea bargain should be negotiated 5) Elect the mode of trial 6) Consider whether to have a preliminary inquiry 7) Decide whether the accused will testify at his trial

Before the trial begins

Both parties make a promise

Bilateral Contract

Contracts in the form of a promise for a promise - Not bound to each other until the act of acceptance commences

Bilateral Contracts

Statutory and common law

2 main sources of law in Ontario

1) negligence 2) intentional torts 3) strict liability

3 main categories of torts

They are arrested, they are asked to take a breath sample, they think they have no choice but to comply with police

A person is detained when:

1) it has been overrule by an even higher court 2) is no longer applicable because of changed circumstances 3) was poorly reasoned 4) has been re interpreted

A precedent is not binding if:

A hearing in front of a provincial judge to see if the Crown has enough evidence to allow the trial of the accused in an indictable offence to go forward

A preliminary inquiry is:

False

A violation of s.8 of the Charter always results in the exclusion of evidence:

- Overrepresented - 4% of Canada's population, but 23% of federal inmates

Aboriginal People in the Criminal Justice System

- Constitutional recognition did not occur until 1982 - The Colonial Legacy: S. 91(24) allocated power to the Federal government with regards to Indians and lands reserved for Indians - The Calder Case brought by the Nisga Clan to claim traditional lands in BC was important - Supreme court didn't grant Nisga Clan their land, they recognized Aboriginal claims Section 35 recognizes and affirms existing Aboriginal rights: - Includes Indian, Inuit and Metis people

Aboriginal Rights

The signification of an unconditional intention to be bound to precisely the terms of the offer - If the response isn't a mirror image of the offer and certain terms are changed, it is known as a counter offer

Acceptance

- Always defined in the statute - Often broadly defined - Can include overt acts - An attempt to commit an offence - An unfulfilled crime - Entering a conspiracy - Counselling someone to commit an offence

Actus Reus

Based on the idea that truth will be best determined when lawyers oppose each other in court and present their cases for a judge: 1) Legislation 2) Decisions of the courts

Adversarial System

no single source, can be found in common law, provincial legislation, federal legislation, national

Advertising law

For the purposes of contract law, an agreement is formed by an offer followed by an acceptance

Agreement

Cannot be changes by ordinary federal or provincial legislation - all laws in the Constitution are entrenched

Constitutionally Entrenched Statutes

Specific bill for terrorism that the government has created. The CBA objects to the bill in the view that the bill is too broad, restricts free speech, criminalizes the legitimate expression of freedom, puts the Charter in jeopardy

Bill C-51

- Soenen performed a hysterectomy on Bollman - The judge found the appellant met the standard of care but operated without informed consent and was negligent - An appeal was then filed

Bollman vs Soenen

A lawyer cant represent one client whose interest are directly adverse to the immediate interests of another client, lawyers firm is also subject to this rule

Bright Line Rules

Builders use to secure amounts owed them for work done on landowners property

Builders' Lien

In common law systems, how might a judge find a new law?

By creating a new precedent

False

CanLii is an organization devoted to developing legal literacy for Canadians:

Allocates power between the federal and provincial governments

Canada's Constitutional Division of powers:

- Adults with a sentence of less than 2 years serve in a provincial or territorial correctional facility - Adults with a sentence over 2 years serve in federal institutions

Canada's Correctional System

1) Constitution Act 1867: statute that brought together 3 colonies (New Brunswick, Nova Scotia and the Province of Canada (Ontario and Quebec)) and created Canada in 1867 2. Statute of Westminister 1931: confirmed Canada's legislative autonomy, and also recognized Canada's legislative equality with Britain 3. Canada Act 1982: When the UK gave up all legislative power over Canada 4. Constitution Act 1982: Contains a revised constitution, includes the supremacy clause

Canada's Key Constitutional Statutes

FIRAC

Case Briefs

- "But for" the wrongdoer's breach of the standard of care, would the victim have suffered harm? - The breach must cause harm - Does not have to be the only cause

Causation

- If important terms are vague or uncertain in the contract the court cannot ascribe any reasonable meaning to them, then the whole contract is void

Certainty of terms

s1. Constitutional protection within reasonable limits s2. Fundamental freedoms s3-5. Democratic rights s.6. Mobility rights s.7-14. Legal rights s.15. Equality rights s.16-23. Official language and minority language and education rights s.24. Enforcement and remedies s.32. Application s.33. Notwithstanding clause: explicitly acting in a way that violates charter rights

Charter Structure

s.11 includes the right: 1) to be tried within a reasonable time 2) not to be compelled to be a witness in proceedings against that person in respect of the offence 3) to be presumed innocent until proven guilty according to law in a fair and public hearing 4) to trial by jury where the maximum punishment for the offence is imprisonment for 5 years or more 5) protection from double jeopardy

Charter and Criminal Trial Process

Requires an ethic of service from lawyers

Chief Justice of the Supreme Court Beverly McLachlins aid that becoming a lawyer:

- Based on gross income of the payor parent and number of kids

Child Support Guidelines

- Includes person who stands in the place of a parent - Most commonly a step parent - Child support must be paid until the child reaches the age of majority - Children over 18 can be dependant if they can't support them selves

Children in Divorce

The right to sue someone from an unpaid debt or other liability

Chose in Action (Personal property)

- Hears all civil proceedings in Ontario including commercial, personal injury, bankruptcy, wills and estates - Also has some appellate (reversing) jurisdiction under various statutes

Civil Jusisdiction

- Civil code - Private law matters - In Canada, France's Code Civil was the most influential

Civil Law

Allowed same sex partners to marry

Civil Marriage Act 2005

- Private (2 individuals) - Goal is to compensate - Proof: balance of probabilities, to prove a tort against someone else, you have to prove that its more likely than not the person committed the tort - 6 jurors - Plaintiff vs. Defendant

Civil Wrongs- Torts

All co owners have equal rights of possession and use

Co-Ownership

- Developed by governing bodies for lawyers in common law jurisdictions to guide their members - Law societies take disciplinary action against those who breach the codes Lawyers: - almost every law society has a code like the CBA - the Federation of Law Societies of Canada (FLSC) adopted the Model Code of Professional Conduct

Codes of Conduct

Precedents- Applying an earlier judicial decision if its similar Stare Decisis- Cases that are alike should be treated alike

Common Law

no dividend right

Common Shares

- Exchange of something valuable by each side - The price paid for another's promise

Consideration

- Both written and unwritten elements - Constitutional Principles are not part of the constitution, but are important - Constitutional Architecture- implies by written elements - Constitutional Conventions - Constitutional law is entrenched and supreme law

Constitution

1) Intention to be bound in law 2) Consideration

Contract Enforceability

- Contract rights arise out of a contract and only affect those who have entered into the contract - Property rights are good against the world, no one can enter your property without your permission, whether they have agreed to it or not

Contract rights vs. Property rights

It is the plaintiff's own fault she is harmed

Contributory Negligence

- Anti social - Harmful - Present a serous risk of harm - Civil law concerns wrongs against individuals, while criminal law deals with wrongs against society Example: Breaching a vehicle contract vs stealing a vehicle - If the vehicle is stolen, the owner of the care does not gain anything from the defendant's punishment - Society punishes these acts to discourage them from happening

Criminal Acts are

Between the state and the accused: Regina versus Smith - Must prove guilt beyond a reasonable doubt Examples - Murder - Sexual Assault - Fraud - Theft - Tax Evasion - Forgery - Willful promotion of hatred Punishments include: - Prison - Probation - Absolute or conditional discharge - Conditional sentence (house arrest) - Fines Point? - Deterrence - Message to society - Made unable to commit another crime - Rehabilitation

Criminal Case

- Superior court has the power to try any indictable offence under the criminal code - Generally only tries most serious offences - Also hears appeals from summary conviction cases

Criminal Jurisdiction

- Prohibits certain acts - In the public interests - Imposes punishments when those acts are committed - Wrongs against society

Criminal Law

- Public (state vs individual) - Goal is to punish and deter - Proof: beyond a reasonable doubt - Prosecutor vs. Accused

Criminal Offences

- Governs the conduct of a criminal case from investigation to appeal - Rights of accused cover about 20% of the charter - Any just and appropriate remedy is under s.24(1) - Evidence is excluded under s.24(2)

Criminal Procedure

- Police officer may issue an appearance notice to the accused at the scene of offence - The accused can sometimes be brought to court by a summons, this requires the accused to attend court on a certain date - The third way of bringing the accused before court is for a justice to issue a warrant for their arrest - For offences not listed in s.469, the accused must be taken for a bail hearing within 24 hours of arrest

Criminal Trial Process

He who owns the soil also owns from the heavens to the depths

Cujus est colum eius usque ad coelum et ad infenos

- Dalhousie sued the estate of a deceased man after he failed to pay $50000 - The law rejected the suit, they stated that the exchange never occurred

Dalhousie College v Boutilier Estate

- Putting the person back to the place they were 1) personal injury - Cost of future care - Lost earning capacity - Non pecuniary damages (pain and suffering- $100,000 in 1978 cap) - Claim for family members income dependency - Claim for family members loss of care, guidance and companionship 2) property damage

Damages

Formal documents showing evidence of ownership - Used to ensure the nemo dat principle is not commonly enacted; the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title

Deeds

Self defence: states that a person is not guilty, a) he believes on reasonable grounds the force is being used against him, b) the act that constitutes the offence is committed for the purpose of defending or protecting them and c) the act is reasonable in the circumstances Consent: the accused must prove that the alleged victim freely consented Provocation:Only available where the accused is charged with murder and does not result in acquittal but rather in a lesser offence Duress: The accused was compelled to commit a crime as a result of threats of immediate death or bodily harm Mental Disorder: No person is criminally responsible for a criminal act made while suffering from a mental disorder

Defences

- Self defence - Duress - Necessity - Provocation - Automatism - Mental disorder

Defences that excuse or justify criminal acts:

Defines specific words and phrases in the contract

Definition Clause

1) Law must have supremacy over the influence or arbitrary power 2) No one is above the law 3) Personal rights and liberties must be protected by giving every person the ability to the courts

Dicey's 3 Core Rule of Law Principles

- Crown must disclose all relevant evidence in its possession to the accused

Disclosure

- Appellate branch of the Superior Court - Primary form for judicial review in Ontario - Also hears family and civil appeals

Divisional Court Jurisdiction

Federal statute, ground- s. 8 Divorce Act - 1 year separate and apart - Adultery of other party - Must not have been condoned - Often admitted but prove by opportunity and inclination - Cruelty of other party- physical or mental - Requires reasonable provision for child support - Mostly uncontested

Divorce Act 1995

No

Does it cost money in Ontario to look up federal statutes?

No

Does it cost money to look up Ontario Federal statutes?

Law of specific state

Domestic Law

When one of the parties entered into the agreement agains their will

Duress

- Integrity - Courtesy and Good Faith

Duties to the Profession and to the General Public

The neighbour principle - The Anns/Cooper test: 1) first branch: foreseeability and proximity 2) second branch: policy- does this class of person have a duty not to harm another class of person?

Duty of Care

1. Title 2. Chapter number or citation 3. Table of contents 4. Preamble 5. Parts 6. Sections also called provisions - Definition section - Enabling section - Consequential Amendment Section - Commencement Section

Elements of a statute

can not be easily changes except according to special processes set on in the Constitution Act itself

Entrenched

The amount of effects born must be equal

Equality (property)

Limits the liability of one of the parties either a fixed dollar amount or for certain types of breaches- altogether

Exclusion Clauses

Contracts that are fully performed

Executed Contracts

The rule of the common law is that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages as if the contract had been performed Example: you hire a contractor to shape your house into a shoe for $175,000, but he quits, another contractor is willing to do it for $200,000

Expectation Damages

Attempt to place the innocent part in the position they would have been in if the contract had been performed - Special damages- out of pocket damages that have already been incurred and are certain - General damages- the value of a lost expectation that is not quantifiable - Liquidated damages- damages that the parties have calculated in advance - Punitive damages- designed to punish the defendant for socially objectionable behaviour

Expectation Damages (contract remedies)

Included in contract

Express Terms

Saying one thing might exclude others

Expressio Unius Est Exclusio Alterius

Dictionaries, legal thesaurus, if desperate- Hansard (debates in the House of Commons)

External Aids

A landowner can cause their neighbour to bear a certain number of effects, but only a fair amount of effects

Fairness (property)

- Divided between the Superior Court of Justice and the Ontario Court of Jusitce

Family Jurisdiction

- Less than 2% of family law cases go to trial

Family Justice Process

- Child and spousal support orders are usually enforced by the Family Responsibility Office - To enforce the FRO canL - Garnish wages, seize property, suspend drivers license

Family Responsibility Office

If the federal and provincial laws conflict with regards to a single activity, federal paramountcy suspends the operation of the provincial law, so only the federal law is functioning

Federal Paramountcy

- Trade and Commerce, criminal law and more

Federal Powers

Divides jurisdiction between: 1. Provincial powers protect regional interests 2. Federal powers serve national interests Sections 91 and 92 of the Constitution Act divide jurisdiction between Federal and Provincial governments, it is exhaustive, meaning there is jurisdiction to enact every type of law

Federal System of Governmnet

1. competing act- false advertising 2. Consumer packaging and labelling act- accurate identification of products 3. Food and drugs act 4. Privacy legislation-PIPEDA

Federal consumer protection laws

- The division of power amongst the federal government and the provinces - The decision to adopt a federal form of government rather than a legislative union was based upon the willingness for the French-Canadian province and the Maritimes to surrender their individual identity

Federalism

Has the right to possess the land and to build on it, alongside the power to transfer the state to others while alive (inter vivos) and to transfer in a will

Fee Sample Ownership

- Protects purchaser of insurance - Property insurance - No fault automobile insurance - Disability insurance - Life insurance

First Party

- Building the hotel that blocked the sun from the property

Fontainebleau v. 4525

- All provinces and territories have legislation requiring certain kinds of contracts to be in writing and to contain certain information

Formal Requirements

Form of ownership that does not involve an obligation to pay rent

Freehold Interests

Manage business together, equal in everything, liable for each other

General Partnerships

Use natural meaning unless this makes no sense

Golden Rule

Acting extremely unreasonable

Gross Negligence

What would prevent a lawyer from being considered for an appointment as a judge of the Ontario Provincial Court?

Having an unresolved Error and Omission Claim on file at the Law Society of Upper Canada

File a patent, memorandum of association or articles of incorporation, must include NUANS about name

How do you create a corporation?

- Everyone who practices 1) any for of polygamy 2) Any kind of conjugal union with more than one person at the same time - BC reference case on Polygamy: 2011 decisions upheld validity of Criminal Code s. 293

Polygamy provision of Criminal Code

Each spouse keeps their own property, but must share equally any increase in value of their property that occurred during the marriage or any property acquired during the marriage, except gifts, inheritances and the matrimonial home

How is property divided amongst couple in divorce?

Moral Activism: Lawyers cannot claim moral absolution for unquestioningly assisting their clients in unjust acts Moral Isolationism: Neutral partisan lawyers leave the ultimate moral judgement to the client, moral activist lawyers reserve that judgement for themselves

How the Butler was made to do it

4 years of school, but some allow after 3, law school admission test, after graduating, lawyers enter articling programs or LPP, and then are called to the Bar

How to Become a Lawyer

- Tried as either summary or indictable - The crown chooses - Assault

Hybrid Offences

Terms that the parties have not expressed in their contract, but are part of the deal Terms implied in fact: terms that the parties would have agreed to if they have put their minds to it Terms implied in law: terms automatically parts of contract owing to the nature of the contract and the laws regulating the area in question Terms implied by custom or usage: based on industry standards for similar types of contracts

Implied Terms

1) infants 2) individuals who are deemed to be mentally incompetent

Incapacity

- Most serious - Stiff penalties - Stipulates maximum convictions, never minimum - Tried by a judge and jury or just judge - Provincial court (without jury) or the superior court (with jury) - No limitation period - Aggravated assault

Indictable Offences

- Owns separate area of law: - Borrows much from contract law - Special set of principles to interpret insurance policy language - Liability insurance - Homeowners, auto, commercial liability - Tort or behaviour insurance - Tort is the trigger for the contract

Insurance Law

Copyright: the right to copy, which only belongs to the copyright owner - lasts for life of the creator plus 50 years Industrial Rights: A design used in making an object by hand, tool or machine - Protected for up to 10 years if registered with CIPO Patent:A right that the government grants to an inventor to prevent others from using his or her invention - Protected for up to 20 years after filing Trademark:Distinguishes the goods and services of a person, business or organization from those of others in the marketplace - Exclusive right to use the trademark throughout Canada for 15 years and then is renewable

Intellectual Property

Can not be a mere "Gentleman's Agreement"; both parties consent to sanctions under the law in the case of breach of contract

Intention to be bound in law

Intended harm

Intentional Tort

- In commercial settings, it is presumed that the parties did intent a legally binding relationship; can be rebutted by clear language to contrary if the parties want the arrangement to be in honour and not binding - In family and social settings, it is presumed that the parties did not intend a legally binding relationship

Intentions to Contract

Any right, claim or privilege that an individual has with respect to real or personal property

Interest

Definition section of the Acr

Internal Aids

Take into account the object of enactment (mischief rule) the words with which it is expressed (literal rule) and the harmony among its provisions and other statutes (golden rule)- Driedger

Interpretation

They have spousal status for federal purposes and are eligible for provincial spousal support

Isabel and John are unmarried cohabitants living in Ontario. They have lived together for two years and are the parents of a baby girl. Which of the following is true?

- A builder had been contracted to build a costly country residence with lots of detail - The builder installed the wrong bran of pipe - Evidence showed that the wrong brand of pipe had no discernible difference to the correct brand of pipe

Jacob and Youngs v Kent

Shared decision making

Joint Legal Custody

Equal time with each parent

Joint Physical custody

1) Possession: equal right to possess the entire property 2) interests: interest of each co-owner must be identical in terms of nature, extent and duration 3) Time: receive interests at the same time 4) Title: must receive their interests under the same instruments

Joint Tenancy

A shared project that isn't a partnership

Joint ventures

- Solicitor work - Dependent on the legislative rules within the particular jurisdiction - Some notaries can act independently of lawyers - In most jurisdictions, lawyers are automatically notaries - Non lawyers can become notaries after an exam

Notaries

When you interfere with the use and enjoyment of one's land

Nuisance (property)

- Federal appointment and provincial - Heather Smith- first female chief of justice of Ontario's superior court Federal Appointment- Inherent Jurisdiction 1) Can take jurisdiction over matters not assigned elsewhere 2) Matters assigned by statue 3) Divorce 4) Civil disputes 5) Serious criminal matters Provincial Appointment- No inherent jurisdiction 1) Only power as assigned by statue 2) Exclusive jurisdiction over child protection 3) Custody, child support, and spousal support not related to divorce 4) Less serious criminal matters, no civil cases Judges must have contributed to the profession, clean discipline record, 10 years as a lawyer

Judge Appointment

- JAAC was formally established in 1995 - Legislation requires the composition of the committee to reflect the diversity of Ontario's population - The Committee includes: 7 lay members, 2 judges, one member appointed by the Ontario Judicial Council, 3 members from the legal community

Judicial Appointment Advisory Committee

Double aspect- different elements of the action will be accounted for by different jurisdictions Example- drunk driving is a federal aspect and property and civil rights is the provincial aspect

Jurisdiction Overlap

- US federal court rules that Utah anti polygamy law that prohibits polygamous cohabitation violates freedom of religiion

Kody Brown V Buhman

- A massive train accident caused severe damage to a town, killing people - Train exploded due to unlawful conduct - Both a tort and criminal law - Tort of negligence - Regulatory offence, or quasi criminal offence

Lac Megantic Case

Candidates must complete this or articling to become lawyers

Law Practice Program

Duty to the State: - Encouraging public respect for and trying to improve the administration of justice Duty to the Court: - Lawyers can be held liable for civil or criminal contempt or misconduct Ethics of Advocacy: - Lawyer's need to balance their obligation to the court and to others 1) Organization and Accused Persons: the lawyer must disclose fraud or illegal activity to the chief legal officer, if the advice isn't followed, the lawyer must withdraw from representing the client, if the accused admits to the crime, the lawyer must set up a case consistent with the admission 2) Criminal Prosecution and family matter: - With family law the process wont always lead to the best outcome even if a lawyer argues for it 3) Withdrawing from Cases: - Must withdraw if she is discharged from client, client wants her to violate professional ethics, finds herself not competent to handle the file 4) Delaying Tactics: - Tactics to delay or embarrass are unethical 5) Duty to Settle: - If a fair result is possible, the lawyers should encourage a settlement 6) Use of Evidence: - No false evidence

Lawyer's Ethical Duties

- If the information was passed between a lawyer and a client in a formal setting, it qualifies as confidential - Exception: imminent risk of death or serious bodily harm, disclosure must be the only way to prevent the harm

Lawyer- Client Confidentiality

Implies an obligation to pay rent

Leasehold Interests

The elected House of Commons and appointed senate at the federal level and the elected legislatures at the provincial level; have the constitutional authority to make laws in the form of legislation

Legislative Branch

The transference of land to someone for their entire life; when the original tenant passes, rights are reverted back to the fee simple owner - Cannot be inherited but can be transferred inter vivos - Sometimes life estates are defeasible: can be terminated if certain conditions are not met

Life Estates

Not liable for each other

Limited liability partnership

Not all participate in the business, they raise money, roles become blurred

Limited partnership

Natural and ordinary meaning

Literal Rule

- Subjective mens rea: what was in their mind? - Objective mens rea: what would a reasonable person do? Beaver Case- the crown could prove the act element (possessing heroin) but not the fault element (knowing he had heroin)

Men Rea

Activities of military personelle

Military law

Intention of legislation

Mischief Rule

Innocent: made without knowing the information was untrue Negligent: Made without knowing the information was untrue, but made under circumstances where the party ought to have known the information was untrue Fraudulent: Made while knowing the information was untrue or at least while knowing there was a serious risk it was untrue

Misrepresentation

A summary of all the rules Putting this into action: 1) literal meaning: start with the meaning of the words 2) context: put words into context 3) purpose of the act: what is the overall purpose

Modern Rule

A kind of charge against a land that secures a debt owed by the landowner

Mortgage

with must, the provision in the statute is mandatory; with may, the judge has discretion to do or not do a certain thing and is discretionary

Must and May

- Concern for the liability of occupiers of land for injuries that visitors sustain while on the property - Four main categories of entrant: 1)Trespasser 2) Licensee 3) Invitee 4) Contractual Entrant -Required level of care increases with each category

Occupier's liability

The communication by one party (the offeror) to another party (the offeree) of an intention to be bound to certain terms, upon the payment by the offeree - An offer is always one step away from an agreement - Objective intention: what a reasonable person would think was intended by the parties based on what they said and did - Subjective intern: what the parties actually believed in their minds

Offer

States competent lawyer means a lawyer who has and applies relevant knowledge, skills and attributes in an appropriate matter for the client

Ontario Rules for Professional Conduct Rule 3.1-1

12

Ontario lawyers are required to complete how many hours of continuing legal education annually?

Appeals from the small claims court and the superior court interim go to the Ontario Divisional Court, while appeals from the Provincial court of Justice go to the Ontario Court of Appeal

Ontario's Court System

Whereby an offer makes a binding promise to keep an offer open for a fixed period of time during which, at any point, the option holder can accept the offer

Options and Deeds

- Traced to ancient Greece, where they used orators to argue on their behalf - Not until Claudies in Ancient Rome when the practice of law was professionalized - The legal profession was firmly established in the Byzantine Empire

Origins of the Legal Profession

Rights

Owners have:

false

Paralegal in Ontario can perform the same function as lawyers:

- A person who is qualified by education and experience to perform specifically delegated substantive and procedural legal work while being supervised by a lawyer - In Ontario, they can practice without lawyers - Lawyers have responsibility for paralegals working under them

Paralegals

The offence and the penalty are forgiven

Pardon

- Doctrine holding that Parliament has total power - Implies 3 principles: 1) Parliament can make or unmake any law 2) Parliament cannot bind itself against using its power in the future 3) A procedurally valid Act of Parliament cannot be questioned by the courts However 1) We are a federation with legislative power split between two levels of government 2) We have entrenched Charter that limits power of legislation 3) Power to amend the constitution lies outside the sole jurisdiction

Parliamentary Sovereignty

- A person who assists can be convicted - Aid: acting as a lookout, distraction - Albet: encouraging or procuring the commission of a crime - Section 21(2) provides that one two or more people have formed a comment intent to carry out a crime, they are guilty of every offence each other commits

Participation in Crimes

Tangible, movable objects like computers and cars and shares in companies

Personal Property

Provides for the registration of a creditor's interest in personal property that the debt controls or possesses

Personal Property Security

- Personal rights are also good against the world, you have the right that others not touch, harm, assault you -Personal rights are granted at birth and always rights - You must acquire property rights

Personal rights vs. Property rights

- Fox issues

Pierson v. Post

- 3 levels of police forces - Federal police force is the Royal Canadian Mounted Police - Majority of police officers are part of the municipal forces - section 24(2) limits the investigatory powers

Police Investigations of Crime

No voting right, superior dividend right

Preferred shares

- You are in charge of what you own - You rather than others, decide what to do with your property Example- Edward v. Lee's Administrator- The cave

Property

- Home and other real estate - Car - Personal items - Household items - Bank accounts - Any business shares Excluded property - gifts - inheritances Property division concerns the value of property acquired during the marriage

Property in Divorce

- Smaller criminal matters - Exclusive jurisdiction over child protection and adoption - Custody, child support, spousal support, as long as no divorce claimed - Cannot grant divorce - Cannot make orders regarding property - No inherent jurisdiction

Provincial Courts

- Property and civil rights, hospitals and more

Provincial Powers

- Can only be passed while legislature is in sessions, sessions lasting 1-2 years on average, but up to 5 years - Very similar process to making federal statues - they only require 3 readings, only one chamber, no senate

Provincial Statutes

- Workers' compensation - Employment insurance - Health insurance - Provincial disability insurance - Criminal injuries compensation - Government compensation

Public Insurance

Laws governing relations between states

Public International Law

Governs relationship between state and person

Public Law

Allow anyone to have shares, more regulated

Public companies:

- Individuals rights with the state - Criminal law - Constitutional law - Administrative law

Public law

Extravagant claims not reasonably taken literally Example: Pepsi Points to buy a Harrier Fighter Jet ruled as puffery

Puff

- Coverage- personal liability- bodily injury or property damage arising out of your personal activities anywhere in the world - Insured= while living in the same household= anyone under 21 Exclusion: bodily injury caused by any intentional or criminal act or failure to act The shooting was an example of a criminal act, Ryan could not receive any money despite proving the tort

R.E V Wawanesa Inc. Co

- In a case where the seller has hired the agent, agency rules dictate that the primary responsibility and loyalty must be to the seller -Relationship between real estate agents and other parties in the real estate transaction involved many contractual and fiduciary obligations - Conveyancing: the actual transfer of title after the contract is entered into

Real Estate Transaction

- Refers to land and also includes anything attached to land

Real Property

You can not ask your neighbour to put up with something you would not put up with

Reasonability (property)

Conscious, unreasonable carelessness

Recklessness

Applies when the parties have made a mistake in recording the terms of their contract in a written document, involved an order that the contract be rewritten as as to correct the mistake

Rectification

- Not true criminal offences - Meant to regulate conduct in the public interest, not to punish wrongful acts - Enacted by federal parliament, provinces and municipalities - Usually a fine - Traffic offence

Regulatory Offences

permissive or restrictive

Regulatory laws are:

Cover expenses that the innocent party paid over to the other parts

Reliance Damages

1) Damages: a monetary reward (most common) 2) Specific performance: a coercive remedy where the court orders a person to do as they said they would do

Remedies for Breach of Contract

- Test is reasonable foreseeability - A policy check on torts - Do not have to foresee the precise way an accident occurs

Remoteness

The contract is cancelled and the parties are returned to the positions they were in before the contract started

Rescission

can also make laws outside the terms set out in the Constitution if it is for the peace, order and general good of the country

Residual POGG power

can also make laws outside of terms set out in the constitution if it is a matter of concern for the property or territory PROBLEM: a problem that arises when analyzing if a government is staying within their own area of jurisdiction is the problem of validity

Residual Power on Matters of a Local and Private Nature

Cover money that the innocent party paid over to the other part

Restitution Damages

On the death of one co-owner, the remaining co-owner automatically inherits their share

Right of Survivorship

-s.10 of the charter provides those who are subjected to arrest or dentition with both a right to retain and instruct counsel without delay and a right to be informed of that right - s.10 also requires a person be informed promptly of the reason for detention or arrest

Right to Counsel

If the accused faces 5 years or more

Right to a jury trial

Final step of the legislative process and the formal means by which a bill passed by the Legislative Assembly becomes a law - 2001 Royal Assent Act enables Royal Assent to be signified by written declaration

Royal Assent

- A person who brings a dangerous substance onto his property is answerable for damages it causes if it should escape - Wild animals are always dangerous and their owners are strictly liablity

Rylands v. Fletcher

Limits can be imposed - Oakes test- step by step process undertaken by government 1) Limits must be prescribed by law 2) Law must have valid purpose 3) Proportionality in the means of the government is using in pursuing their objective: - Rational connection - Minimal Impairment - Final Balance

Section 1

The right to counsel

Section 10

Specific rights when a person had been charged

Section 11

The right not be subjected to any cruel and unusual treatment or punishment

Section 12

Equality rights: - Does not apply to every way the government treats individuals differently, only distinctions that relate to personal characteristics that are enumerates in S.15, or analogous t o these characters

Section 15

Freedom of expression: - Protects any expressive activity that attempts to convey meaning, but does not extent to include freedom of violence or threats of violence

Section 2

General, includes aboriginal, gender equality

Section 25-31

Mobility rights

Section 6

The right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice

Section 7

The right to be secure against unreasonable search of seizure - need a warrant

Section 8

The right to not be arbitrarily detained or imprisoned

Section 9

- A judge must consider aggravating circumstances related to the offence or the offender that increase seriousness Example- evidence was motivated by bias or hate on grounds of discrimination - Mitigating circumstance decreases the seriousness of the offence, which may result in a reduced sentence Example- whether the offender corporate with police or showed remorse

Sentencing

A sole practitioner is approached by a new client who asks her for legal advice. She looks into her records and discovers that she is working on another case for a client whose interests are adverse to this new client. She is a practitioner in a small town and could use the money; she really wants to take on this new client. The lawyer would be respecting the duty she owes to both parties if she does the following:

She provides full disclosure to both clients and receives their consent, and hold the reasonable belief that she can represent the interests of both clients without adversely affection the interests of either one

Do not use what is yours to injure your neighbour

Sic utere tua ut non alienum laedas

- 45% of all civil cases - cost efficient - Plaintiff and defendant - 4 steps in making a claim: 1. Completing the Plaintiff's Claim form 2. Filling the Plaintiff's claim 3. Paying court fees 4. Serving the Plaintiff's Claim 4 Steps in replying to a claim: 1. Completing a defence form 2. Serving the defence form 3. Filing the defence form and any documents that support your claim 4. paying court fees * if the defence isn't filed on time, the court can make a decision against you- the default judgement * Affidavit of Service= careful notes of what happened

Small Claims Court

- Value of claims is $25,000 or less - Small civil claims - Many appeal without a lawyer - Judges are local lawyers appointed part time

Small Claims Court

Most common, 1 director, not a legal entity

Sole Proprietorships

- Exclusive jurisdiction over criminal law and procedure to the parliament of Canada - The criminal code was enacted in 1892 and is the main source - Common law is another primary source of criminal law - Canada Evidence Act: covers witnesses and evidence law - Controlled Drugs and Substances Act: regulates certain kinds of dangerous drugs and narcotics - Youth Criminal Justice Act: deals with young persons who commit crimes in this country

Sources of Canadian Criminal Law

1) statutes 2) Common law 3) Constitution - Section 91(27) gives federal parliament exclusive jurisdiction over substantive criminal law and criminal procedure

Sources of Criminal Law

The court orders the party in breach to perform his obligations as promised

Specific Performance

False

Specific performance is a remedy a court can order in breach of contract cases in which a party is ordered to pay specific damages to the innocent party

In the last 5 years: -7% of women had been assaulted at least once by current partner - 6% of men has been assaulted at least once by current partner - 25% has been assaulted at least once by prior partner More likely in: - lower income - Younger - Aboriginal 30-60% of abusive spouses also abuse their kids

Spousal Abuse

- Only paid in minority of cases - Only a spouse can claim support - Common law relationship for at least 3 years or have a child - Spousal Support Advisory Guidelines

Spousal Support

Used for predictable, uniform, common transactions- situations where individual negotiation would be impractical

Standard Form Contracts

- What is the acceptable standard of care? - Reasonable person test - Was it breached? - probability of loss - Gravity of loss - Burden of accident prevention

Standard of Care

- Larger criminal Matters - No jurisdiction in child protection or adoption - Custody, child support, spousal support, regardless of whether divorce is claimed - Can grant divorce - Can make orders on property - Inherent jurisdiction

Superior Courts

laws that conflict with the constitution are not enforceable

Supreme Law

Unities of interest, time and title are not required for this kind of ownership

Tenancy in Common

Gives the parties the right to end the arrangement, usually by providing a notice of reason

Termination Clause

Supreme Court is the ultimate court of appeal- it hears from the Provincial Courts of Appeal- who hear from the Provincial Superior Court level (no inherent jurisdiction)- The Federal Court of Appeal and the Federal Court Trial Division are both special statutory courts with no inherent jurisdiction Military Courts hear claims agains the army

The Canadian Court System

1) Protect rights and freedoms 2) Constrain government interference with these rights 3) are subject to limits

The Charter

Defines and classifies criminal offences

The Criminal Code:

- Hears appeals from the Superior Court if less than $50,000 - Hears requests for permission to appeal interim orders - Is made of judges from the OSC

The Divisional Court

government officials, like the PM carry out and administer the laws of the legislative branch

The Executive

- Family matters only - One Stop Shopping - Combines the family related functions of the OSCOJ and SC - Spreading throughout the province - Judges are appointed by provincial and federal government at the same time

The Family Court Branch of the OSP

interpreting and enforcing the law, and resolving disputes about the law and constitution

The Judiciary

Singed in 1215 between the English King John and his barons, stating that the King can no longer act in an arbitrary manner, but follow full legal proceedings

The Magna Carta

- While the law insists that an agreement must involve an exchange of value, it does not insists on the fairness of the exchange - Why would Paul McCartney sign an agreement to pay 1$? - To have evidence of the agreement

The Peppercorn Principle

1. Must be applied fairly to all 2. Be created fairly Four Universal Principles: 1. The government and its officials and agents as well as individuals and private entities are accountable under the law. 2. The laws are clear, publicized, stable and just, are applied evenly, and protect fundamental rights, including the security or persons and property. 3. The process by which the laws are enacted, administered and enforces is accessible, fair and efficient 4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve

The Rule of Law

- The charging document describing the offences is called Information in a provincial court - if the trial is in superior court, the charging document is called an Indictment - The trial starts with the arraignment, whereby the charge is read to the accused in an open court

The Trial

False

The headnote of a case gives a summary of the facts, issues and decisions in the case and it is therefore not necessary to read the whole case

An over arching legal principle that applies to all democratic nations

The rule of law is:

Why might some argue that "vague and overly broad language" contained in the new Anti-Terror Bill violated the rule of law?

The rule of law requires that all laws are clearly written and unambiguous in their application

True

The term internal aid means the definition section included in a statute

- Liability insurance of at fault tort feasor - Automobile liability insurance - Reciprocal insurance (universities, hospitals, schools) - Government liability - Umbrella coverage - Broker's insurance

Third Party Liability

You must be a lawyer in good standing for ten years and must complete the application

To apply to become an Ontario Supreme Court Judge

Eliminated the transfer of title by deeds, replacing them with statutory transfer forms

Torrens Systems

- Violation of this right depends on: 1) the length of the delay 2) Explanation for the delay 3) whether the accused has waived their right by consenting to the delay 4) whether the accused has suffered prejudice

Trial in a reasonable time

1) summary conviction 2) Indictable offene 3) Hybrid offence

Types of Criminal Offences

Misfeasance: doing something carelessly - Driving too fast Nonfeasance: not doing something you have an obligation to do - Failure to put a seatbelt on your child

Types of Negligence

Outside the constitutional power of the government that tried to enact it

Ultra Vires

Applies when one party takes advantage of another Requires 2 elements: 1) Inequality of bargaining power 2) An unfair bargain

Unconscionability

- Make laws for the peace, order and good government of Canada - Legislate in relation to Criminal Law and procedure - Legislate in relation to Trade and Commerce

Under the Constitution's division of powers in s. 91 and 92, the federal government has the power to:

When one party has exerted unconscionable use of power over another and has thereby influenced the weaker party to enter the influence (duress light)

Undue Influence

One party makes a promise - Lost dog, if you do not find the dog, you are not breaching the contract, but if you do, you get the award

Unilateral Contract

- Federal purposes after 1 year, treated as spouses - Ontario for spousal support 3 years

Unmarried Cohabitation

- Laws must lie in the jurisdiction of the enacting government to be considered valid - To determine if a law is valid, a government will observe the pith and substance of the law (its purpose and effects) - if it fits into a category that belongs to the other level of government upon completing a validity analysis, it is said to be ultra vires

Validity Analysis

The police do not need a warrant if the person consents to a search or if they are conducting a reasonable search incident to arrest - Evidence obtained under section 8 will not automatically be excluded under the charter, judges will apply the 3 part test: 1) the seriousness of the charter violation 2) the impact of the charter violation on the accused's charter protected interest 3) society's interest in an adjudication of the merits

Warrant

Conspiracy to commit and criminal act

What charge can be brought against another person who agrees with others to commit a crime, even if they crime is never committed?

Gives government the right to create CBCA

What does residual clause do?

The residual clause reserved for the federal government in s.91 of the Constitution Act, 1987.

What is the constitutional basis for the federal government to create the Canada Business Corporations Act to allow for federal corporations?

- Stay the legal proceedings agains the accused - Exclude evidence that was obtained unconstitutionally - Release the accused from prison

Which of the following is a remedy that the courts can provide if an accused's Charter rights are violated by the policy, the prosecutor or correctional service personnel

The right to receive a share of the assets of the corporation on dissolution of the corporation should there by any remaining

Which of the following is a right enjoyed by every shareholder of a corporation?

Section 7

Which section of the charter governs the right to silence?

Both the federal and provincial governments

Who permits the creation of corporations?

The federal, provincial or even municipal government, depending on what activity the bank is undertaking

Who regulates banks in Canada?

Promise for an action - IF

unilateral contract