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
