Business and Consumer Law

Claim

The formal document that initiates litigation by setting out the plaintiffs allegations against the defendant

Pleadings

The formal documents concerning the basis for a lawsuit

Equal Bargaining Power

The legal assumption that parties to a contract are able to look out for their own interest

Vicarious Liability

The liability that an employer has for the tortuous acts of an employee committed in the ordinary course or scope of employment

Burden of Proof

The obligation of the plaintiff to prove the case

Consideration

The price paid for a promise

Thin Skull Rule

The principle that a defendant is liable for the full extent of a plaintiff's injury even where a prior vulnerability makes the harm more serious than it otherwise might be

Litigation

The process involved when one person sues another

Duty of Care

The responsibility owed to avoid carelessness that causes harm to others

Reasonable Person

The standard used to judge whether a person's conduct in a particular situation is negligent

Objective Standard Test

The test based on how a reasonable person would view the matter

Assault

The threat of imminent physical harm

Limitation Period

The time period specified by legislation for commencing legal action, 2 yrs for civil litigation in Ontario, 6 yrs for breach of contract

Trespass to Land

Wrongful interference with someone's possession of land

An agreement

An agreement is composed of an offer and an acceptance, the parties have agreed on the essential obligations to each other

Option Agreement

An agreement where in exchange for payment an offeror is obliged to keep an offer open for a specified time

Punitive Damages

An award to the plaintiff to punish the defendant for malicious, oppressive, and high-handed conduct

Precedent

An earlier case used to resolve a current case because of its similarity, like cases should be treated similarly, lower court must follow the precedent of a higher court, the higher the court the higher the precedent

Invitation to Treat

An expression of willingness to do business

Negligent Misstatement/Negligent Misrepresentation

An incorrect statement made carelessly, in the form of words

Fundamental Freedoms

Everyone has the following 4 fundamental freedoms 1. Freedom of conscience and religion 2. Freedom of thought. Belief, opinion, and expression, including freedom of the press and other media communication 3. Freedom of peaceful assembly 4. Freedom of association

Pure Economic Loss

Financial loss that results from a negligent act where there has been no accompanying property/personal injury damage to the person claiming the loss

Statute Law

Formal, written laws created or enacted by the legislative branch

Executive Branch

Formulates and implements government policy and law, implements and generates policies

Tort

Harm caused by one person to another, other than through breach of contract and for which the law provides remedy

Royal Prerogative

Historical rights and privileges including the right to conduct foreign affairs and to declare war

Risk Reduction

Implementation of practices in a business to lower the probability of loss and its severity

Constitutional Conventions

Important rules that are not enforced by a court of law but that practically determine or constrain how a given power is exercised

Communication of Acceptance (ordinary rule)

In order to affect legal acceptance the offeree must communicate by words or by conduct an unconditional assent to the offer in its entirety

Battery

Intentional infliction of harmful or offensive physical contact

Judicial Branch

Judges disputes, judge whether laws are constitutional

Workers Compensation

Legislation that provides no-fault compensation for injured employees in lieu of their right to sue in tort

Product Liability

Liability relating to the design, manufacture or sale of the product

Gilbert Steel Ltd. v University Construction Ltd.

Set a steel price for a contract, asked the University to pay the higher price when steel price increased, later the University refused and only paid the original price, promise however was in good faith and not legally enforceable

Concurrent Jurisdiction

Shared between levels of government

Lapse

The expiration of an offer after a specified or reasonable period

Inferior Courts

A Court with limited financial jurisdiction whose judges are appointed by the provincial government, organized by type of case

Royal Bank of Canada v Intercon Security Ltd.

A Intercon Security personnel used his previous knowledge from working at the security company to steal a whole bunch of stuff, the bank should have had better security methods in place to avoid such an occurrences and because some of the information was stolen it was not the fault of the security company

Counterclaim

A claim by the defendant against the plaintiff

Superior Courts

A court with unlimited financial jurisdiction whose judges are appointed by the federal government

Contributory Negligence

A defence claiming that the plaintiff is at least partially responsible for the harm that has occurred

Promissory Estoppel

A doctrine whereby someone who relies on a gratuitous promise may be able to enforce it

Deceit or Fraud

A false representation intentionally or recklessly made by one person to another that causes damage

Contingency Fee

A fee based on a percentage of the judgement awarded and paid by the client to the lawyer only if the action is successful

Intentional Tort

A harmful act that is commited on purpose

Rebuttable Presumption

A legal presumption in favour of one party that the other side can seek to rebut or dislodge by leading evidence to the contrary

Mediator

A person who helps the parties to a dispute reach a compromise

Arbitrator

A person who listens to both sides of a dispute and makes a ruling that is usually binding on the parties

Arbitration

A process through which a neutral party makes a decision (usually binding) that resolves a dispute

Gratuitous Promise

A promise for which no consideration is given

Standard Form Contract

A take it or leave it contract, where the customer agrees to a standards set of terms that favours the other side

Carlill v. Carbolic Smoke Ball Co.

Advertisement offering to pay the user a set amount of money if they use the smoke ball correctly, by buying the product acceptance of the offer was implied and thus Carbolic Smoke Ball owes Carlill the money

Certainty of Offer

All essential terms must be set out or the contract will fail for uncertainty

Acceptance

An unqualified willingness to enter into a contract on the terms in the offer

Neighbour Principle

Anyone who might reasonably be affected by another's conduct

Prima Facie

At first sight or on first appearances

Political Executive

Branch of government responsible for day-to-day operations including formulating and executing government policy as well as administering all departments of government, includes the Prime Minister etc.

The Formal Executive

Branch of government responsible for the ceremonial features of government, part of the executive branch of government, the governer general etc.

Government Policy

Central ideas or principles that guide government in its work, including the kind of law it passes

Aggravated Damages

Compensation for intangible injuries such as distress and humiliation caused by the defendant's reprehensible conduct

Pecuniary Damages

Compensation for out-of-pocket expenses, loss of future income, and cost of future care

Non-Pecuniary Damages

Compensation for pain and suffering, loss of enjoyment of life and loss of life expectancy

Business Relationships

Contract law's emphasis is usually on a specific transaction and not traditionally concerned with longer-term business relationships

Lowe Ltd v. Upper Clements Family Theme Park Ltd.

Contractor sought to rent a crane for the month, got the claim then sent a counterclaim for only one month not the full 4, Lowe accepted to loan the crane for 4 and negotiate for the 1 month, the contractor was not on site so the Theme park returned the crane and paid the equivalent for the amount of days they had the crane

Legislative Branch

Creates law in the form of statutes and regulation, passes laws that impact bus operations

Commencing the Actions

Criminal law legal action called prosecution and brought on by Crown or government, tort law the injured party brings legal action

Purpose of Actions

Criminal law seeks to punish, tort law seeks to compensate

Proving the Actions

Criminal the Crown has burden of proof on criminal action (without reasonable doubt), tort law plaintiff on the balance of probabilities

Substantive

Defines rights, duties, and liabilities

Paramountcy

Doctrine that provides that federal laws prevail when there are conflicting or inconsistent federal and provincial laws

Statement of Claim

Document setting out the basis for a legal complaint

Dickinson v. Dodds

Dodds was going to sell property to Dickinson and set an expiry date, Dodds sold the property before the deadline and the court said that Dodds properly revoked his offer so selling the property was allowed

Economic Reality

Not always the best economic decision for a party to keep the legally binding commitment that contract law create

Partial Payment of Debt

Once a lesser amount has been freely agreed upon and paid the creditor cannot later claim the full amount

Exclusive Jurisdiction

One level of government holds entirely on its own and not on a shared basis with another level

Primary Liability

One's liability to their own wrongdoing

"Notwithstanding" Clause

Permits the creation of certain laws without regard for certain constitutional rights

Tort-Feasor

Person who commits a tort

Jurisdiction

Power that given level of government has to enact laws

Common Law

Refers to judge made law also used to describe system of private law in place in all provinces (excluding Quebec)

Procedural Law

Refers to law governing the procedure to enforce rights duties and liabilities

Common Law

Rules that are formulated in judgements

Equity

Rules that focus on what would be fair given the specific circumstances of the case, as opposed to what the strict rules of common law might dictate

Contract Law

Rules that make agreements binding and therefore facilitate planning and the enforcement of expectations

Total E-com Home Delivery Inc v. Smith

Smith's contract was terminated for poor contractual performance and he sold the remaining property in his warehouse that technically was owned by Future Shop, Smith was not entitled to sell the property and after money owed to Smith was subtracted the rest was owed to E-com

Constitutional law

Supreme law of Canada that constrains and controls how the branches of government exercise, upholds the values of a nation

Remoteness of Damage

The absence of sufficiently close relationship between the defendants action and the plaintiff's injury

Reasonable Care

The care a responsible person would exhibit in a similar situation

Risk Retention

The decision to absorb the loss if a legal risk materializes

Risk Avoidance

The decision to cease a business activity because the legal risk is too great

Risk Transference

The decision to shift the risk to someone else through a contract

Voluntary Assumption of Risk

The defence that no liability exists as the plaintiff agreed to accept the risk inherent in the activity

Revocation

The withdrawal of an offer

Jones v Chafer Estate

Truck drivers truck had a missing wheel so it was parked at the side of the road with flares to be visible, overnight the flares were stolen and in the morning another truck collided with the parked broken down truck and exploded, Jones did his best to prevent the accident and was not held liable

Joint Tort-Feasors

Two or more persons whom a court has held to be jointly responsible for the plaintiff's loss or injuries

Bigg v. Boyd Gibbins Ltd

Two parties had sent letters back and forth discussing price, there was implied acceptance and so there was a contract

Contributory Negligence

Unreasonable conduct by the plaintiff that contributed the injuries that were suffered

Negligence

Unreasonable conduct including a careless act or omission that causes harm to another

Mediation

a process through which the parties to a dispute endeavour to reach a resolution with the assistance of a neutral person

Postbox Rule

acceptance is effective at the time of the mailing of the acceptance rather than the time of delivery