Business Law 276 Chapter 1 & 2

Statute

Another term for any act passed by a legislative body such as Parliament in Ottawa or a provincial legislature (or local governments). It also includes all regulations passed under the umbrella of any act. Statutes will always override common law providing they are not ultra vires the legislative body that passed them and do not contravene the Charter of Rights and Freedoms. The statute dealing with the issue of when title to goods passes from the seller to the buyer in the absence of agreement to the contrary is called the Sale of Goods Act.

Who does the Charter protect and what rights are protected?

Any person in Canada - whether they are a Canadian citizen, a permanent resident or a newcomer - has the rights and freedoms contained in the Charter. There are some exceptions. For example, the Charter gives some rights only to Canadian citizens - such as the right to vote

Best Practices

A best practice legal risk plan is a starting point. Managing legal risks needs knowledge, skills and flexibility to adapt to the needs of the situation.

Parliamentary supremacy

A constitutional convention that allows the legislature to override judge made law. This means the legislative branch can respond to court rulings or interpretations of the law by creating new law to give effect to what they wish to do. -all up to judges how laws are interpreted basically.

What is the Canadian Charter of Rights and Freedoms?

The Canadian Charter of Rights and Freedoms sets out those rights and freedoms that Canadians believe are necessary in a free and democratic society. The Charter is one part of the Canadian Constitution. The Constitution is a set of laws containing the basic rules about how our country operates. For example, it states the powers of the federal, and provincial and territorial governments in Canada. the most important law we have in Canada

The United Nations passed the Declaration on Rights of Indigenous Peoples

The Canadian government now supports this and BC enacted the Declaration on the Rights of Indigenous Peoples Act, which aims to create a path forward that respects the human rights of Indigenous peoples while introducing better transparency and predictability in the work we do together.

CCRF (Canadian Charter of Rights and Freedoms) Limitations:

The Charter has had a profound impact on law in Canada because it has broadened the judiciary's ability to strike down legislation. -charter protects rights and freedoms from GOVERNMENT interference*** 1. Section 1 provides that all rights and freedoms are subject. to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". 2. Section 33: Legislatures can pass acts that infrings on rights "notwithstanding" the Charter, but legislation must be reviewed every 5 years (sunset clause) Section 31: Restricts operation of the CCRF to government and government related activities.

Shared power: Concurrent jurisdiction

The areas of law-making authority set out in sections 91 and 92 largely represent the exclusive jurisdiction of the federal and provincial levels of government. Where the Constitution sets out an exclusive jurisdiction, the other level of government is excluded from enacting legislation. For example, a provincial government cannot enact criminal law. Also, a government cannot directly delegate its exclusive law-making authority to the other level. Sometimes, however, the federal and provincial governments will share law-making authority. This is known as having (Figure 1.2)

3 centric circles (Indigenous law)

The individual, family, and community. Indigenous law can be the path to healing within those circles.

Provincial/territorial superior courts

The superior courts try the most serious criminal and civil cases. These include divorce cases and cases that involve large amounts of money (the minimum is set by the province or territory in question).

Provincial/territorial courts of appeal

These courts hear appeals from the decisions of the superior courts and the provincial/territorial courts. These can include commercial disputes, property disputes, negligence claims, family disputes, bankruptcies, and corporate reorganizations. Appeals are usually heard by a panel of three judges. The courts of appeal also hear constitutional questions that may be raised in appeals involving individuals, governments, or governmental agencies.

Trustworthiness

Truthfulness, sincerity, candor, integrity, promise keeping, loyalty, honesty

The Answer to Every Legal Question

"It depends..." Assessing a legal question requires applying the applicable law and relevant facts to the issue at hand. -ex. is restaurant licensed to serve alcohol? in what province is the restaurant located? Change the facts and you change the answer.

Legislative Branch

(See Table 2.1, printed) -democratically elected, whose function it is to legislate, introduce, vote on, and pass legislation, also known as statute law. -legislature at the federal level is Parliament. -legislative process = manner in which a bill (proposed law) becomes a statute.

Canadian Charter of Rights and Freedoms (11) Application of Charter

) This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. (2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force. 33.(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

What if a business is involved with a regulatory body/govt official?

-A matter of public law.. ex. health and safety officials, food inspection agencies, labour rights board.

Canadian Charter of Rights and Freedoms (2) Fundamental Freedoms

. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.

Administrative Law

-Administrative tribunals are like courts. Handle disputes, make decisions affecting individuals about how government program will affect individuals, and companies. -Rates you pay for phone is regulated by Canadian Radio and Television comission, etc when you go to work + overtime is handled by Labour Standards Branch. If you dont agree, you can appeal to Employment Standards tribunal. Employment Standards tribunal was created by legislation (a type of law made by govt). -Many professional groups such as lawyers, teachers, veterinarians known as self-regulated professions are given authority through legislation to create own tribunals to handle qualificaitons, disputes from publci, etc. Administrative Tribunals provide a quicker, more accessible less costly alternative to the courts. Ex. when person takes case to emplooyment standards tribunal, they have a right to a lawyer. Not necessary, though. -Administrative Tribunals are more informal, more flexible about ways to deal with it. -Adjudicators, not judges - specialized knowledge in that area. Resolve disputes by mediating, written decisions, investigate, regulate, make policies.

Risk Plan Should.... Step 3 continued

-Allocate roles and responsibilities. Identify information requirements. -Establish communication methods. -Ensure safety of all visitors & staff with minimal operation disruption. -Comply with laws & regulations.

Legal Risk Plan (Step Four)

-Carry out the plan. -Monitor and revise the plan. -Recovery or Debriefing: to determine how your business has been affected.

The Canadian Constitution and Other Sources of Law in Canada (continued)

-Constitution Act, 1982 (includes the Charter of Rights and Freedoms "CCRF") -Canadian courts are empowered to strike down any law that violates the Charter -Charter protects rights and freedoms from government interference

Administrative Law - Where do they fit in?

-Executive branches of government delegates the regulation of business and other government activities to these boards and tribunals.

Burden of proof and standard of proof

-One set of events can lead to both a public law trial and a lawsuit. For example, a person can be charged with fraud (a crime) in public law and be sued (a lawsuit) see table 1.6!!!! Burden of proof refers to the responsibility to prove the case in court. In the criminal case, the burden of proof will be on the prosecutor. Consider that it is society who is accusing the defendant of the crime, so it will be society's representative who must prove the charges. In contrast, the burden of proof in the lawsuit will be on the plaintiff, because it is the plaintiff who is claiming that the defendant should be held liable for the harm done. Standard of proof = refers to the degree of proof that must be provided in order to satisfy the court that the allegations are proven. The serious nature of an accusation by the state against an individual results in a higher standard of proof in criminal cases. In a criminal case, the prosecutor will have to establish the defendant's guilt beyond a reasonable doubt. lawsuit = plaintiff has a lower standard of proof bc they dont have to prove reasonable doubt. In order to be successful in the lawsuit, the plaintiff must satisfy the court that the defendant is liable on a balance of probabilities. The court will be satisfied of a defendant's liability if it accepts the sufficient likelihood of the plaintiff's claims. A person who probably committed a crime (but there is reasonable doubt) will not be found guilty; but a person who probably wronged the plaintiff will be found liable for the harm.

Administrative Law Advantages

-Panel usually have specific expertise in subject matter -More discretion that judges -More efficient -Quicker, less costly.

Criminal vs. Civil Law

-Parties in a criminal matter -Parties in a civil dispute -Burden of proof in criminal matters -Burden of proof in civil matters -The same set of facts can be both criminal and civil.

Categories of Law (4)

-Substantive Law -Procedural Law -Public Law -Private Law

How common law came to be in Canada

-System followed by all provinces, territories, and federal govt. -"stare decisis" - to follow what has already been decided -also known as the doctrine of precedent.

Administrative law (TEXTBOOK)

-area of public law -Administrative law refers to the body of law that is concerned with the regulation of business and other activities by government, including the rules created and applied to government agencies and their decision-making powers. -It is an area of public law with growing importance to business, as government agencies, boards, and commissions expand regulation of economic and commercial activity. See Table 1.8 for examples of administrative agencies that affect business. Administrative agencies: govt bodies established by legislation to regulate or oversee a particular activity that requires specialized knowledge. 3 functions: 1.advisory (providing info to help develop govt policy) 2. operational (day to day operations) 3.regulatory

Executive Branch

-carries out day to day function of government, formulates and executes govt policy and administers all the depts of govt. Chief executive = priminister at fed level, premier at provincial level. cabinet included. establishes govt policy. -Statutes enacted by the legislative branch of govt often empower the executive branch to create the detailed rules to complement the legislation.

Constitution Act, 1867

-creates a federal system of government in Canada.

The rule of law

-nobody is above the law, prevents arbitrary use of government power.

Terminology of PRIVATE LAW: Lawsuits

-teriminology of civil law cases, or lawsuits, is different form public law cases. -We do not say that someone is "charged" with breach of contract or is "guilty" of a tort. It is not the purpose of a lawsuit to punish the person sued, so there will be no fines or imprisonment as a result. -Categorized as private law, lawsuits involve disputes between persons. -A person who has been wronged, in private law, can sue the person responsible for the harm. Rather than punishing the wrongdoer, the purpose of the lawsuit will be to compensate the person who has been wronged. -There is no government involvement and thus no prosecutor. plaintiff = person bringing the lawsuit. defendant = person being sued. -case is concderned with whether the defendent is liable/legally responsible... monetary compensation= damages.

Canadian Charter of Rights and Freedoms (5) Legal Rights

. Everyone has 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. 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 11. Any person charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time; (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;

Canadian Charter of Rights and Freedoms (10) General

. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. 26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada. 27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. 28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons. 29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools. 30. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be. 31. Nothing in this Charter extends the legislative powers of any body or authority.

Canada's Two Legal Systems

1. Civil Law (A system of codified law) 2. Common Law (System of law that recognizes court decisions with the same force of law as statutes - includes the Law of Equity)

Ten Commandments of Business Law

1. Consult a lawyer before you do something you are not sure of, not after; paying legal fees for an hour's worth of advice is far better than a $30,000 litigation bill in BC Supreme Court. 2. Protect yourself from liability with a good insurance policy and have clearly written exemption clauses in your contracts. 3. Before starting up a business with somebody else, make sure you have a partnership agreement or shareholders agreements. Again, see a lawyer. 4. Never sign any document unless you have first read, understood, and consented to all that it says. 5. Put all your contracts into writing, especially if they involve a significant sum of money. This includes later modifications or changes to the original agreement. 6. Follow the golden rule in your dealings with employees, customers, clients and competitors: there is a correlation between proper legal behavior (and its consequences) and proper moral behavior. 7. If you lend money to anyone, make sure you're a secured creditor (i.e., take security over the debtor's collateral). 8. Whomever you choose as a person to be your agent, make sure he or she is someone you completely trust and who you know will be reliable. (The person you choose as your partner, your company's director or your key employee will be your agent in law.) 9. Promptly register any document that ought to be registered at the appropriate government registry (from easements to chattel mortgages to trademarks). 10. Be careful whom you hire, and make sure you have proper legal grounds to terminate that person if he or she does not work out.

3 types of indigenous governments

1. First Nations under INAC; 2. Indigenous Self Governments aka FN Self Governments; 3.Hereditary Governments. (First Nations governments, self governing first nations, hereditary governments). From a legal perspective self-governing nations and FN governments are very different and they have struggled to be recognized as such.

How Courts are Organized / Hierarchy of the courts (4 levels)

1. Provincial and territorial (lower) courts: These courts handle most cases that come into the system. They are established by provincial and territorial governments. 2. Provincial and territorial superior courts: These are courts of plenary, or complete, jurisdiction established under section 96 of the Constitution Act, 1867. They deal with more serious crimes and also hear appeals from provincial and territorial courts. The Federal Court is on the same level, but is responsible for deciding civil matters assigned to it by statute, such as immigration and patents. 3. Provincial and territorial courts of appeal and the Federal Court of Appeal. 4. The Supreme Court of Canada, which is the final court of appeal for Canada.

Textbook (4 main strategies in managing legal risk)

1. Risk avoidance. This involves the decision to stop a particular business activity because the risk is too great; this might be of particular importance where the probability and the severity of the risk are high. 2. Risk transference. This approach involves transferring the risk to another; the two most common ways to transfer risk are by contract (where another party agrees to assume the risk) or acquisition of insurance (where your risk is pooled with that of others). 3. Risk reduction. This is an extensively used strategy in legal risk management plans that involves putting practices in place to lower the probability and/or severity of the risks. 4. Risk retention. This is a decision to simply risk it; this approach may be appropriate where the impact of the risk on the business is lower than the cost of avoiding or transferring the risk.

Private Law

Relates to the legal relationships between persons, ..so social, personal, or including corporation relations. -legal aspects of business are mostly private law matters.. the law of torts, property, contracts.. etc.

Fair and just processes in Administrative Law = Duty to be Fair (4 Principles)

1. TRANSPARENCY A person affected by an administrative decision has the right to know the case against him or her, and has the right to have an opportunity to respond. For a dispute over overtime pay, the owner has to back up their position by giving the employee + adjudicator a written submission, evidence, etc. Employee has an opportunity to respond in writing, including own evidence. Oral hearings. 2. A person is entitled to a decision by an unbiased adjudicator. Based on arguments and nothing else. Must act ihndependently without any influence/bias. 3. Person who hears the case must decide the case. A case cannot be decided by someone who did not read/hear submissions. If there are govt policies that apply to case, can only be applied if it makes sense to do so. 4. Decision maker must give reasons for decision. All parties should know reasons for final judgement.

Administrative Law: Procedural fairness simplified

1.Rules of natural justice set basic standard • The person affected by the decision must be notified that a decision is going to be made. • All the information, or evidence, that will impact the decision must be disclosed to the person it will affect. • The person affected by the decision must be provided with an opportunity to address or refute the evidence provided. • The decision must be made by the body that hears the evidence. • The decision-makers must be impartial (free from any bias or conflict of interest in the case).

"What if" questions.. (3)

1.What if...happened here...what would it mean to us? 2.What are the implications for our business and the attitudes of clients/customers? 3. What must we do to protect our business and to restore client/customer confidence?

Canadian Constitution incorporates..

2 legal systems, british common law and european civil law.

Canadian Charter of Rights and Freedoms (8) Minority Language - Educational Rights

3.(1) Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province. (2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language. (3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

Code of Business Conduct

5 Core ethical values -Trustworthiness -Respect -Responsibility -Fairness -Caring -Citizenship

Canadian Charter of Rights and Freedoms (9) Enforcement

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1),a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Respect

Respect, autonomy, courtesy, self- determination

Responsibility

Responsibility, diligence, continuous improvement, self- restraint

Caring

Caring, kindness, compassion

Citizenship

Citizenship, philanthropy, voting

Judicial branch

Comprised of judges whose function it is to adjudicate, they do so by interpreting and applying the law to disputes that are brought before the courts. Judges appointed by federal and provincial govts, but they function independently from both the legislative and executive branches. -interpretation and application of law by judges can lead to the creation of precedent...it creates "rules" that must be followed by other judges.

Business and the Law (Table 1.1)

Review, printed.

Administrative agencies that affect business

See table 1.8

although rights and freedoms are guaranteed by the Charter, they are not without limits.

Each time a court hears a constitutional challenge about whether a law has violated the Charter, the court must consider whether the law imposes a reasonable limit on the right or freedom. Only when the court finds that the law violates a Charter right and cannot be justified as reasonable in the circumstances will the court strike down the legislation. For example, although the Charter protects freedom of expression, this freedom may be reasonably limited by laws regulating pornography, hate speech, advertising, copyright, defamation, and even noise by-laws.

Canadian Charter of Rights and Freedoms (7) Official Languages of Canada

English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. (2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick. (3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French. 16.1(1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

Substantive Law

Sets out the rights and obligations of individuals.. this is the "substance" of the rules that establish what we can and cannot do. ex. speed limit law is substantive law. speeding = an offense that violates this substantive law.

A Sampling of Statutes that Affect Businesses

Table 1.3, printed

Canadian Charter of Rights and Freedoms (4) Mobility Rights

Every citizen of Canada has the right to enter, remain in and leave Canada. (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province. (3) The rights specified in subsection (2) are subject to (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada

Canadian Charter of Rights and Freedoms (3) Democratic Rights

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. 4.(1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members. (2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be. 5. There shall be a sitting of Parliament and of each legislature at least once every twelve months.

Canadian Charter of Rights and Freedoms (6) Equality Rights

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Law Making Jurisdiction

Federal Jurisdiction: -Trade & Commerce -National defence -Banking, currency, postal service -Criminal -Sipping -Residual power Provincial Jurisdiction: -Municipal institutions -Hospitals + Health care -Direct taxation with province -Administration of justice -Property, civil rights & employment -Matter of a local nature

First Nations Governments vs. Self Governing First Nations

First Nations Governments: -Currently governed by the Indian Act & have been for over 140 yrs. -Reserve based, elect chief and councils to make decisions on their behalf and pass by laws. -The Act establishes a limited form of local administration. -Many FN communities are not interested in removing themselves for many reasons. -634 FN govts in Canada Self-Governing First Nations (Indigenous Governments): -Can make their own laws+policies, have decision making power in many matters; including 1. Matters internal to their communities 2. integral to their cultures and traditions. -25 self government agreements acrossd Canada including 43 indigenous communities. (ex. Westbank First Nation Self-Govt Agreement, BC, 2005; Sechelt Indian Band Self-Government Act, 1986)

Canadian Charter of Rights and Freedoms (1) Guarantee of Rights and Freedoms

Guarantee of Rights and Freedoms

Self Government Agreement w/ the Federal Government

In 2019 the Federal government signed self-government agreements with three provincial branches of the Métis Nation in Ontario, Alberta and Saskatchewan. Nunavut has a self government agreement but for the whole territory - not individual communities.

Family courts

In most provinces and territories, the superior court has special divisions, such as the family division. Some superior courts have established specialized family courts to deal with specific family law matters, including divorce and property claims.

Judicial Review

Judicial Review -Judicial review: not the decision, but the process by which it was made. -One of the following must be present: -Invalid statute -Decision or remedy goes beyond power set out in legislation -Errors of law on the record -Failure to follow procedural justice -Abuse of discretionary power

Fairness

Justice, fairness, impartiality, equity

How a statute is created

LOOK @ THE THING

Charter Rights and Business Activities

Look @ Table 1.4

Outline of Canada's court system

Look @ it, printed out, green boxes.

Legal Risk Plan (Step three)

Manage, Avoid or eliminate the risk. Reduce the risk. Transfer the risk. Retain the risk.

Provincial/territorial courts

Provincial/territorial courts deal with: •most criminal offences, except the most serious ones; •family law matters (e.g., child support, child protection, adoption, but not divorce); •young persons from 12 to 17 years old in conflict with the law; •traffic and bylaw violations; •provincial/territorial regulatory offences; •claims involving money, up to a certain amount (set by the province or territory in question); •small claims (civil cases that resolve private disputes involving limited sums of money); and •all preliminary inquiries (hearings to determine whether there is enough evidence to justify a full trial in serious criminal cases).

The Crown

Queen = symbolic head of state. crown lands = govt lands.

Procedural Law

Refers to the rules of how substantive law will be enforced. -There are often numerous rules of procedure on how to enforce a single substantive rule. -ex. speeding, thjere are many rules in place that must be followed by law before someone can be convicted of that offense.. a ticket, ticket dispute, time limit, court hearing... the rules governing the court process are also procedural.. who will be at the hearing, how it will be conducted, how witness testimony will be admitted..

Public Law

Regulates the relationship between individuals and government at all levels. -concerns the people as a whole... in our society, the public are represented by government. ex. tax law, criminal law, admin law, environmental law, etc.

See table 1.7

for a summary of the key differences between criminal and civil court proceedings.

administrative tribunal

is any government body (even if it is called something else) that has a decision-making function. The rules that provide the authority, procedure, and limits to tribunal actions are all part of administrative law. There are countless examples of government bodies that function as tribunals. Look at Table 1.8 and consider the context in which those administrative agencies would act as tribunals in exercising decision-making discretion.

Criminal Law

refers to the rules of state that are designed to protect society as a whole. Regulated by the fed govt.. uniformly applicable across all of Canada. enforced by the state. -criminal law proceedings are that of public law. society = represented by Crown, known as prosecutor. *Provincial govts dont have authority to make criminal law... though they can make REGULATORY OFFENCES. ex. can develop fishing laws..if someone is charged for these offences it will go through a process similar to that of less serious criminal offences known as summary conviction offenses.

ADMINISTRATIVE TRIBUNAL VERSUS JUDICIAL PROCESS

• Administrative tribunals are not bound by the strict rule of stare decisis that requires courts to follow previously decided cases. • They can take public policy into account when applying the law. • Their procedural rules are more informal and flexible. • The rules of evidence are much more permissive, such that evidence that would not be admissible in court may be accepted at a hearing before an administrative tribunal. • There is often no appeal process that would bring the substantive legal matter dealt with by an administrative tribunal into the court system; generally, the opportunity to involve the court system is limited to challenging whether the administrative body had legal authority to make the decision or whether it properly followed the rules of procedural fairness. The means of challenging a tribunal decision in this manner is a process known as judicial review.

It is helpful to ensure that all businesses start with the same base understanding of the Canadian legal system. This is important for businesses because:

• examining the different sources of law allows businesses to appreciate the wide range of laws that affect Canadian businesses; • familiarity with government bodies and their respective roles allows businesses to identify which government bodies can assist them in interpreting law, changing ineffective law, or resolving legal disputes; • identifying the legal limitations on government action allows businesses to properly protect their interests; and • recognizing the different categories of law allows businesses to better understand the purpose and objectives of particular laws.

Code of Business Conduct

•A code of ethics should discuss: 1.conflicts of interest 2.protection and use of corporate assets and opportunities 3.confidentiality of corporate information 4.fair dealing with the issuer's security holders, customers, suppliers, competitors, and employees 5.compliance with laws, rules, and regulations 6.the reporting of any illegal or unethical behaviour

Legal Risk Plan (Step One)

•Assess the organization's functional areas •Review the organization's business decisions •Examine the organization's business relationships •Analyze the organization's operations and transactions

Legal Risk Plan (Step Two)

•Assess the probability of loss. •Assess the severity of loss. •Using the SWOT analysis and your legal knowledge evaluate your ability to cope with legal risks. •Be pro-active and on top of what is going on in the your community, country and around the world.

Administrative Law - The authority of the decision maker

•Decision makers must be able to point to statutory authority that empowers them to make a decision. •Rules of statutory interpretation used to guide reading in harmony with the objective and other provisions of the statute. •Statutes must be passed by appropriate level of government and be compliant with Charter

Business and the Law - Managing Legal Risk (TEXTBOOK, 3 STEPS)

•Identify the legal risks - (This is a comprehensive process that requires assessing the entire operation of the business, including functional areas of the business as well as internal and external relationships. It requires a basic familiarity with the laws that will govern your business.) •Evaluate the legal risks (For each risk identified, assess the probability of the risk occurring and the severity of potential losses, should the risk occur. (Refer to Table 1.1.) This requires an understanding of the consequences of legal breaches and the options for resolving disputes.) •Manage the legal risk by devising and implementing a strategy •Carry out, review and revise your legal risk strategy (This will require you to devise proactive and reactive measures to address the risks that you have identified. Conscientious implementation of the plan should reduce or eliminate significant legal risk.)

Legal Aspects of Business Activity

•Law functions to create stable environments in which members of society can plan their affairs with some certainty and predictability. •There are key areas of law that are common to all types of businesses, regardless of industry. •Knowledge of business law forms the basis upon which to assess legal risk and, in turn, develop important skills for avoiding legal risk.

Business Law and Business Ethic

•Legal principles and ethical values often intersect, but they are not the same thing. •Business ethics are the values and moral principles that help to identify right and wrong in a business context. •There is no established Code of Business Conduct in Canada. Businesses should establish their own code of conduct for their organization and their employees.

Aboriginal Law

•Right to self-determination and self- government are inherent and exist apart from Canadian Law. •Indigenous peoples have drawn on international law to support claims. e.g UNDRIP, which the Canadian government now supports.

The Canadian Constitution and Other Sources of Law in Canada

•The Constitution Act, 1867 (formerly the BNA Act) created a federal system of government. •The Three Branches of Government: see Table 1.2 •Legislative Branch •Executive Branch •Judicial Branch