This Document Contains Chapters 1 to 4 Chapter 1 Managing Your Legal Affairs Learning Objectives • Explain the meaning of “sophisticated client” • Describe the role of the lawyer • Identify when to hire a lawyer and when to represent yourself • Explain how to find a good lawyer • Review how lawyers bill their clients • Describe legal aid • Outline the procedure to follow to complain about your lawyer • Discuss the ethics of lawyers and of clients Answers to Questions 1. Explain the meaning of “sophisticated client”. Sophisticated clients are confident, knowledgeable, up-to-date and understand the role of a lawyer. As well, they know when to represent themselves and when to hire a lawyer, and the costs involved when a lawyer is hired. 2. Why should the owner of a small business have a lawyer on “the team”? A lawyer is an expert, providing relevant advice to the client, which allows the client to make an informed decision. 3. Distinguish the role of the client from the role of the lawyer. The client is the decision maker, who consults a number of experts, including lawyers, in order to make decisions. Lawyers are experts in their field who provide advice, and who must follow the instructions of the client. 4. “The elimination of ‘solicitor–client privilege’ would significantly undermine the integrity of the Canadian legal system.” True or false? Explain your answer. True. Solicitor-client privilege ensures full and frank disclosure between clients and their lawyers. The value of the lawyer’s advice will be greatly reduced if it is based on incomplete information. 5. What are some examples of decisions that owners of small businesses make? What role can a lawyer play with respect to the making of these decisions? The legal form of the business, whether to buy an existing business or create a new one, what are the relevant laws and regulations affecting the business and what constitutes compliance, issues with regard to purchase or lease of business premises, funding of the business, contracts with employees, suppliers and customers, intellectual property and, finally, sale of the business. 6. What role has the computer played with respect to the solicitor-client relationship? Computers allow clients to research easily accessible legal information online, rather than having to consult a lawyer for every decision. 7. “It is a good idea to hire a lawyer when you have been charged with a crime.” True or false? Explain your answer. True. The stakes are high. If convicted, you will be punished and have a criminal record. 8. When you are trying to find a lawyer to help you, what are some sources of lawyer’s names? Sources include referrals from friends or relatives, provincial law societies, lawyer referral services, provincial branches of the Canadian Bar Association, advertisements and the Yellow pages. 9. What is the primary purpose of an initial consultation with a lawyer? To decide whether the lawyer is suitable for you to retain. If so, then the lawyer will decide if it is agreeable to represent you. 10. Briefly explain three ways lawyers bill their clients. Which of the three is most commonly used? Fixed fees – for specific tasks such as will preparation, purchasing a house or incorporation. Hourly rate – billing for time spent on the client’s file. This is the most common method of billing a business. Contingency fee – charging a percentage of the amount the client collects. Most appropriate for personal injury or product liability cases. If the client does not collect, the lawyer does not get a fee. The types of cases covered and allowable percentages vary from province to province. 11. “Legal aid is available to anybody with a legal problem.” True or false? Explain your answer. False. There are financial limitations and limitations on the types of disputes legal aid will deal with. This also varies from province to province. 12. What can a client do if she is unhappy with the bill she received from her lawyer? Attempt to resolve the dispute directly with the lawyer. If not successful, mediation may be an option. If mediation is not available or successful, the bill could be reviewed by court officials. The method of review varies from province to province. 13. “Should a client lose money because of the carelessness of his lawyer, he will be compensated for his losses if he makes a complaint to the law society.” True or false? Explain your answer. False. The Law Society deals with disciplinary matters only in respect of the carelessness. Compensation would have to result from settlement or, if unable to reach an agreement, through a legal suit by the client against the lawyer. The Law Society will likely require the lawyer to have errors and omissions insurance which will assist with recovery of the loss after settlement or judgment. 14. When will a lawyer be disbarred? Lawyers who fail to follow the rules of conduct of the Law Society they belong to are subject to disciplinary investigations and hearings. If the conduct complained of is a serious breach, such as misuse of client funds, they may be disbarred. 15. “When a person acts unethically, she will also have broken the law.” True or false? Explain your answer. False. Ethics tells us what we should do; the law tells us what we must do. Generally speaking, every person breaking the law in Canada is acting unethically, but a breach of ethics is not necessarily breaking the law. 16. What is a code of business conduct? Should such a code be used by a small business? A code of business conduct is a statement of values and principles of ethical behaviour that establishes a code of conduct which all employees, officers and directors of the business would be expected to follow. If created when a small business is first established, it is probably the best way to ensure the long-term adoption of these principles as the business grows. Solution to the Cases 1. Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, [2010] 1 S.C.R. 815, 2010 SCC 23 The Supreme Court unanimously reversed the decision of the Court of Appeal. Section 2(b) of the Charter does not guarantee access to all government documents. The documents protected by the Ontario FIPPA dealing with solicitor-client privilege were excluded from being disclosed. Lawyers required to register as lobbyists may have to disclose client names and the nature of the lobbying activity. Some banking records of lawyers regarding client names and information may be accessible under money laundering and state security legislation. 2. Wayne v. Wayne, 2012 ABQB 763 (CanLII) Relevant legislation does not expressly allow the court to pierce the solicitor-client privilege. The basis for this is for clients to have complete trust their counsel representing them. Counsel can only represent clients if clients are completely open and speak freely with counsel. The privilege is for the benefit of the client. In this case, the mental state of the trustee’s mother, the privilege does not work to her benefit. The court should grant access to the estate file. 3. University of Alberta v. Chang, 2012 ABCA 324 (CanLII) The appeals were allowed and the applications were remitted for trial. The chambers judge copied and pasted the briefs filed by the parties and simply retyped them. He signed then as reason for judgment. Briefs are often one-sided so they so they were prepared in an adversarial context. The passages from the chambers briefs did not disclose who the chambers judge arrived at his decision. There was no evidence to suggest there was inordinate delay. The appellate court must rebut the presumption that the lower court has reached its decision through its own unbiased analysis to overturn the decision of the lower court. Chapter 2 Introduction to the Legal System Answers to Questions l. Why is it difficult to come up with a satisfactory definition of law? The main point that students should raise is that a definition of “law” varies with the perception and preferences of the person being asked the question. Someone committed to an empirical approach might adopt the definition of the legal positivist. That is, law is determined by the authority of the body that passed it. A pragmatist would lean toward the American legal realist’s definition. That is, law is whatever a judge is willing to enforce. The point is that the student should understand that the definition of law cannot be separated from the philosophical stance of the person responding to the question. 2. Where do we look to predict the outcome of a legal dispute? (a) In a common law system? Predictability of the law is determined by precedent-making cases. (b) In a civil law system? Predictability of the law is determined by the central civil code. 3. Explain how the use of previous decisions differs in civil law and common law jurisdictions. In a civil law jurisdiction only the code is binding on the judge. Cases decided by other judges are merely persuasive. They can be turned to for guidance but the judge is not bound by them. However, cases in a common law jurisdiction are the binding aspect of the law and, therefore, if a particular case qualifies as a precedent the judge faced with that precedent must follow it. 4. Describe what is meant by the statement, “Common law judges did not make the law, they found it.” When the common law was originally introduced in England it was the legal structure that was imposed, not the rules of law themselves. The judges merely applied the law or rules that were already in place with the “common people” in the local jurisdictions. From this arose the concept that the common law was not imposed but merely found. In reality this can only be applied to a small portion of the common law. In fact, as the common law developed, judges borrowed from many different sources, such as civil law, canon law, the law merchant, etc. As well, statutes have been passed which considerably alter judge made law. 5. Describe the advantages and disadvantages of the system of stare decisis. The main advantage to stare decisis (or the process of following precedent) is the stability and predictability that it provides for the legal system. It is not always necessary for someone to go to court to find out how the law will be applied in a given situation. Precedent cases can supply that information, and the parties may avoid the cost and difficulties associated with a court action by settling the dispute. Another advantage to the system is that where there is no precedent covering a particular situation before the court, the court then is free to make such precedent. The main disadvantage of the stare decisis process is that, as the number of precedents grows, the courts are unable to change and adapt as the attitudes of society alter. The courts often find themselves applying rules established centuries earlier which (other than the fact that they form a precedent) may have no justification for being applied in a modern situation. Happily statutes have altered many laws set by precedent and which no longer have a modern use. 6. Describe the problems with the common law system that led to the development of the law of equity. Because of stare decisis among other things the common law became rigid in its procedure and inflexible in the rules that were applied. Similarly, the remedies that were applied were limited. The problems were not corrected internally and, therefore, the courts of chancery developed to provide relief in those situations where it was warranted. 7. Detail what was accomplished by the Judicature Acts of l873-75. The Judicature Acts (1873-75) rationalized the various different court structures in place in England before this time into one central court system called the English High Court of Justice. Thus the separate courts of chancery and common law ceased to exist, although the separate bodies of law developed by them continued to exist. 8. Explain what is meant by the phrase, “the supremacy of Parliament.” In the English and Canadian legal system Parliament is supreme. A statute enacted by Parliament becomes the definitive law of the land overriding any other rule or law, such as common law, precedent, etc. This must be contrasted to the American system which has a system of checks and balances between the executive, legislative and judicial branches of government and under various circumstances each branch of government can override what the other does. In Canada the supremacy of Parliament is now subject to the operation of the Charter of Rights and Freedoms. 9. What effect will a properly passed statute have on inconsistent judge-made law (case law)? Because of the principle of supremacy of Parliament such a “properly passed” statute will override any inconsistent judge-made law. 10. Outline how a parliamentary bill becomes law. A new law goes through a process of introduction in the form of a bill, debate, modification, and approval referred to as first, second and third reading and then receives royal assent from the Governor General or Lieutenant Governors. 11. Using the principles of stare decisis, explain how judges determine whether or not they are bound by another judge’s decision in a similar case. Judges are bound by the precedent-making decision of other judges who are in the same judicial system at the same or a higher rank.. Thus a Supreme Court of Canada decision is binding on the Ontario Superior Court of Justice and an Alberta Court of Appeal decision is binding on a Court of Queen’s Bench of Alberta judge. However an Ontario Superior Court of Justice decision is not binding on a judge in the courts of any other province. Secondly, the judge must determine whether the case presented as a precedent covers essentially the same facts or whether it can be distinguished. If the facts can be distinguished or differentiated the case is not a binding precedent. 12. What is included in Canada’s Constitution? Legislation, conventions and court decisions considering the constitution form Canada’s Constitution. The British North America Act (now Constitution Act, 1867) is part of the legislation in the Canadian constitution. The legislation in the Canadian constitution also contains many subsequent important documents, such as: the Statute of Westminster (1931), the Constitution Act (1982) including the Charter of Rights and Freedoms, plus any amendments that have taken place. The various statutes having constitutional standing in Canada are now listed in an appendix to the Constitution Act (1982). In addition to these, the Canadian constitution contains all of the great provisions of England’s constitution, such as: the Magna Carta, the English Bill of Rights, and the many unwritten constitutional conventions, such as the principle of the rule of law. Court decisions considering the constitution form binding precedents that become part of the Canada’s constitution. 13. What is the effect of sections 91 and 92 of the Constitution Act, 1867 formerly the British North America Act? Sections 91 and 92 of the Constitution Act, 1867 divide powers between the federal and provincial governments. Section 91 assigns certain areas of legislative power to the federal government and Section 92 assigns other powers to the provincial governments. It is this separation of powers between the federal and provincial governments that is the foundation of our federal system. 14. How did the Constitution Act, 1867 limit the power of the federal and provincial governments? How is it possible, given that division of powers, to have identical provisions in both federal and provincial legislation and have both be valid? The Constitution Act, 1867 originally referred to as the British North America Act, assigns certain areas of governmental control to either the federal or provincial governments for their exclusive jurisdiction. Since the Act deals with types of legislation there may be overlap between the powers of the two levels of government. For example, the provincial government can pass legislation making a particular type of activity illegal because it interferes with health and the federal government can make that same activity illegal because it is a crime. 15. Explain what is meant by the doctrine of paramountcy. When does the doctrine apply? Since it is possible to have valid federal and valid provincial legislation dealing with the same activity, it is also possible to have conflict. When it is not possible for a person to obey both laws the doctrine of paramountcy declares that the federal legislation must be obeyed and that the provincial legislation is inoperative to the extent of the conflict. 16. Describe the limitations on the federal or provincial governments’ power to delegate their authority to make laws. The federal and provincial governments cannot delegate their power to make laws. They can delegate the administration of the laws to another body, such as an administrative tribunal. 17. Identify the limitations of human rights legislation. Does it address all discrimination? It only addresses the grounds for discrimination in the areas of society which are described in the legislation. For example, in most jurisdictions a restaurant is legally able to only hire attractive servers, so long as they do not discriminate against any applicants on any of the prohibited grounds such as age or physical disability.. 18. Explain how the Constitution Act, l982, including the Charter of Rights and Freedoms affects the doctrine of supremacy of Parliament. The Constitution Act, 1982, including the Charter of Rights and Freedoms, places many areas beyond the power of either the provincial or federal governments. Many important rights and freedoms as set out in the Charter cannot be changed or modified without a constitutional amendment, so in those areas Parliament is no longer supreme. The courts now have the power to declare legislation passed by either the provincial or federal governments as unconstitutional, not because it encroaches on the other’s jurisdiction but simply because it is inconsistent with the Charter of Rights and Freedoms. 19. Explain any limitations that apply to the rights and freedoms listed in the Charter. Section 1 limits our rights when reasonable to do so in a free and democratic society. Section 33 allows government to pass legislation contrary to certain sections of the Charter as long as they state they are doing so at the time. The exemption lasts for only five years but may be renewed at the end of that period. 20. Give examples of democratic rights, mobility rights, legal rights, and equality rights as protected under the Charter. Give examples of three other types of rights protected under the Charter. Democratic rights - right to vote, that elections be held. Mobility rights - the right for citizens to live, work and travel freely in Canada. Legal rights - right to life, liberty, security. Equality rights - the right not to be discriminated against on the basis of sex, religion, race, national origin, etc. Personal freedoms - freedom of conscience, religion, belief, opinion, expression. Language rights - French and English are guaranteed as the official languages of Canada. 21. How do human rights codes differ in their application from the Charter of Rights and Freedoms. The Charter only deals with our relationships with government and government institutions. The human rights codes govern our relationships with each other and non governmental institutions such as corporations. Solutions to Cases 1. R. v. Clough, 2001 BCCA 613 (CanLII) Clough could argue the trial judge was to take in consideration the court’s judgment for Kozma to receive a conditional sentence. The trial judge was not supposed to pass his own judgment on the court’s ruling of Kozma. Clough could then argue that her circumstances were similar to Kozma and trial judge should impose the same conditional sentencing. Clough could argue on the principle of stare decisis that the judge of the BC court should be bound by the decision of the judge of the BC Appeals court since they are in the same judicial system. 2. R. v. Spratt, [2008] B.C.J. No. 1669 (B.C.C.A.), 2008 BCCA 340 (CanLII); application for leave to appeal to S.C.C. dismissed June 18, 2009. The British Columbia Court of Appeal held that the intent of the Access to Abortion Services Act to allow safe access to health care services justified a limitation on the freedom of expression protected under Section 2 of the Charter. The court pointed out it was only small limitation and therefore the rights of the patients were found to be paramount. 3. McKay-Panos v. Air Canada, [2006] F.C.J. No. 28; 2006 FCA 8, [2006] 4 FCR 3 (CanLII). The Federal Court of Appeal held that the seat is an “obstacle” under the Canada Transportation Act. The obese appellant was found to have a disability under the Act. This finding of a “disability” would be a precedent to be argued if an accommodation is sought under the Canada Human Rights Act. Chapter 3 The Resolution of Disputes: The Courts and Alternatives to Litigation Answer to Questions 1. List and describe the principal advantages of alternative dispute resolution. • Control: The parties involved remain in control of the problem and its solution. • Delay: The parties can determine the time and place of the process. • Lost productivity: Managers can devote less time and resources to the dispute allowing them to continue their work. • Costs: Legal and court costs are reduced and avoided. • Privacy: The matter does not become a public record. Only the immediate parties need be involved. • Goodwill: Because both parties agree to the resolution process it is a less adversarial process where concessions and compromise are encouraged. • International disputes: Jurisdictional rules are less of a problem since the parties can set their own terms for resolving the matter. There is no need to turn to the courts of either nation. • Flexibility: The parties select the kinds of processes they use, customize it to their needs and then set the time and place of the hearing and who needs to be involved. 2. Distinguish between negotiation, mediation and arbitration and discuss the advantages of each of them. In negotiation both parties communicate directly to each other or through their lawyers. In mediation the disputing parties agree on a neutral third party to facilitate the communication. The mediator hears the positions of both sides, has some power to gain the necessary information, suggests areas of agreement and possible compromise, encourages concessions and helps the parties come to agreement. Mediators do not impose a decision on the parties. In arbitration the disputing parties agree to be bound by the decision of a neutral third party. Often they select the arbitrator but the person may be determined by a pre-existing contract between the parties. Parties present all of the information to the arbitrator, who is usually an expert in the matter in dispute, and who then makes a decision. The parties are bound by the decision and usually cannot appeal it. They essentially give control of the matter to the arbitrator. Negotiation is the simplest form of ADR, but requires a willingness to compromise, not compete. Either side can withdraw at any time as a result until a final settlement agreement may be reached. Skill and experience is an asset, and may compromise the outcome if a party lacks these. Mediation is very flexible, but again, relies on cooperation of the parties. There is no power to compel disclosure of evidence, and may emphasize the weaker party’s lack of power. It is helpful when dealing with confidential information, and also lends itself to a speedier and less costly resolution of disputes. Arbitration often involves the use of an expert in the field, who is trained in the process. There are more formal rules of conduct, and the decision is binding on the parties. It loses the flexibility found with the other two forms of ADR, and is far more adversarial in nature, takes longer and is consequently more expensive as well. However, it is still better than litigation for all these aspects. 3. Distinguish between negotiation, mediation and arbitration and discuss the advantages of each of them. ADR is becoming more popular in solving online disputes. E-commerce Internet transactions involve relatively small amounts of money. Mediation and arbitration are thus more practical than litigation. Other benefits include overcoming geographical issues, cost reduction, and quick resolution. ADR facilitates confidentiality which is important to many online businesses. Online dispute resolution programs (ODR) are becoming more common and will continue to improve and become more cost effective. A pilot project is underway in BC conducted by Consumer Protection BC to enable consumers and businesses to resolve their disputes using ODR. BC recently incorporated ODR into its law in the Civil Resolution Tribunal Act. There is now an online tribunal for small claims and condominium disputes. If the implementation of ODR into the justice system is seen to be successful it will lead to more widespread use of this approach. 4. Describe the court hierarchy in Canada, including provincial and federal courts. Each province normally would have a provincial court consisting of small claims, family, criminal and young offenders’ functions. Each province then has a Supreme Court (sometimes called the Court of Queens Bench). At the highest level each province has an appeal court either as an independent court or as a division of their superior court. There is also a Federal Court, a Federal Court of Appeal and the Tax Court of Canada to deal with matters directly involving the federal government. Finally the highest court in Canada is the Supreme Court of Canada. 5. Distinguish between questions of law and questions of fact, and explain why this distinction is significant. A question of fact is a question regarding the details of an event. Did a particular thing happen? When? Where? And what was the result? A question of law deals with the rules that are applied by the courts to the particular situation. Is a pedestrian permitted to cross on a red light? Is a pedestrian permitted to cross in the middle of the street? Is a director required to disclose conflict of interest? As a general rule it is only questions of law or disputes over a legal question (as opposed to a question of fact) that can be appealed to a court of appeal. 6. Who appoints provincial superior court judges? Provincial court judges? Superior court judges are appointed by the federal government (initially usually from a list of lawyers supplied by a panel made up of representatives of the bar, bench, federal government, provincial government and police.) The provincial government appoints provincial court judges. 7. How would the expiration of a limitation period affect the rights of parties to litigate a matter in dispute? If the time limitation for commencing action expires before the plaintiff commences their action, they are barred from ever commencing it. 8. In cases involving the Internet, what are some of the factors the courts examine when they are determining if there is a real and substantial connection to a jurisdiction? A problem can exist in Internet disputes about which courts will the right to hear a case when the parties reside in different jurisdictions. Can a business that transacts business online be at risk to be sued or prosecuted in every area their Internet message is received? There has to be a special link, connection, or degree of interactivity, before a local court will take jurisdiction. While treaties may exist for the enforcement of one court’s orders in another jurisdiction, generally, as a prerequisite, the conduct complained of must be actionable in both areas. Internet businesses should clearly state their rules and what law will apply in their contract. If a website is created to do business in another jurisdiction, the court of that jurisdiction will likely apply to the transactions unless it is clearly stated in the contract. 9. What are the pleadings used to commence an action in the superior trial court in your jurisdiction? Either a Writ of Summons or a Statement of Claim is used to commence an action depending on the jurisdiction. 10. How does the discovery process take place, and what is its significance in civil litigation? The discovery of documents and verbal examination for discovery are essential in the litigation process. Information is disclosed to both parties so that there are no surprises later. This disclosure makes settlement of the dispute more attractive to the parties, thereby considerably reducing costs and the demand for court services. Discovery of documents involves each party to the litigation being permitted to inspect and copy the relevant documents of the other party. Examination for discovery takes place when, through a lawyer, one party to the litigation is permitted to question under oath the other party on matters relevant to the litigation. 11. Explain how an offer to settle can affect the judgment award made by the court to the plaintiff. The defendant or plaintiff can make a formal offer to settle to the party. The party receiving the offer then has the option of accepting that offer to settle, which ends the litigation process, or refusing it. If it is refused and the eventual judgment awarded by the court differs from the offer, then the party who made the wrong decision on the offer is punished by the award of costs by the court. For example if the plaintiff made the offer and judgment is less than the amount offered, the plaintiff will not receive compensation for legal costs that have been incurred after the formal offer to settle. 12. Describe the recent initiatives taken in your jurisdiction to “speed up” the litigation process. This will vary with the jurisdiction but may involve summary trials based on affidavit evidence, streamlined or simplified procedures for cases involving lesser amounts, or mandatory mediation. Recent initiatives to speed up litigation include the "Recent Arrivals" docket for faster immigration hearings and the New Era ADR platform for virtual dispute resolution. Recent initiatives to speed up litigation include the "Recent Arrivals" docket for faster immigration hearings and the New Era ADR platform for virtual dispute resolution 13. Explain the trial process. The plaintiff first presents their witnesses (direct examination) and exhibits. The defendant cross examines. The defendant then presents his witnesses (the plaintiff cross examines) and exhibits. The plaintiff’s lawyer and then the defendant’s lawyer summarize and if a jury is involved the judge gives instruction to the jury. The jury meets privately, then returns and delivers judgment. When there is a judge alone, written judgment may be delivered some time later. 14. Compare party and party costs to solicitor and client costs. To whom are these costs generally awarded? Either solicitor-client or party-party costs are awarded to the victor and paid by the loser in a civil action. Party-party (or taxable costs) are based on a schedule of costs set out in the Rules of Court and are normally not enough to the cover the actual legal costs incurred. Solicitor-client costs are the amount that lawyers are expected to charge a client for the services provided and are normally in excess of party-party costs. 15. Distinguish among the various remedies available to a successful plaintiff in a civil action. Damages (money award) which are usually compensatory but may be punitive or exemplary Accounting where the wrongdoer must account for an amount and pay it to the victim Replevin or restoration of personal property Injunction is an order to stop doing some inappropriate activity. Specific Performance is an order to do what was agreed to in the contract Declaration is where the court makes a declaration as to the law and this is usually combined with other remedies. 16. Explain the role of the examination in aid of execution in enforcing those remedies (from Question 15) and indicate what other methods are available to enforce a judgment against a debtor who is trying to avoid payment. Once judgment has been obtained it is possible for the judgment creditor to have an examination held before a judicial officer to question, under oath, the debtor as to the amount and location of all assets. After the hearing the judgment creditor can ask that the sheriff or civil enforcement agent to seize the various assets which will be sold to pay off the debt. Bank accounts and wages owing to the judgment debtor can be garnisheed to satisfy the judgment. 17. Explain the value of an injunction as a prejudgment remedy. Discuss other prejudgment remedies available to aid in the collection of debt. Some provinces allow garnishment before judgment. Most provinces will permit, with a court order, the seizure of assets that might be used or destroyed before the judgment is obtained. An injunction can be obtained against an institution holding funds for the debtor to prevent the funds being surrendered to the debtor. While this does not make the funds available to the creditor, it does keep the debtor from otherwise disposing of them. 18. Under what circumstances will the courts review a decision made by a government bureaucrat or administrative tribunal? 1. Judicial review will be available where administrative agencies have no authority to make a decision or have stepped outside their authority. 2. Judicial review is also available when the rules of natural justice have not been followed. 3. In very limited circumstances the merits of the decision itself can be reviewed, but as a general rule courts are reluctant to interfere with a decision unless some procedural or jurisdictional defect is present. 4. Judicial review is available when an error of law on the face of the record has taken place. 19. What must be examined to determine whether a decision maker has acted within his or her authority? There must be a valid statute or regulation that empowers the decision maker. To determine if a decision maker has acted within their authority, examine the enabling legislation and the scope of the delegated powers. This involves reviewing relevant laws, regulations, and case precedents to ensure the actions align with the legal framework and intended authority. 20. What are the requirements for a fair hearing and what is necessary to satisfy the rules of natural justice? The person affected must be given notice of the hearing including an indication of the nature of the matter to be decided. The parties must be given an equal opportunity to state their positions, which may include the right to produce and cross-examine witnesses. All other information that is relevant to the decision must be disclosed in the hearing. The decision maker does not have to follow the strict rules of evidence. The evidence in the case must be heard by the decision maker. The decision maker must be impartial. 21. Distinguish between certiorari, prohibition, mandamus and a declaration. Certiorari is an order by the court declaring the decision of the administrator to be null and void. Prohibition is an order by the court to the administrative tribunal not to make a decision. Mandamus is an order by the court to the administrative tribunal to make a decision. A declaration is simply the court declaring the law in a particular situation and is not an order to the administrative body. 22. What is a privative clause? How do the courts usually react to them? A privative clause is a provision in a statute which prevents the courts from reviewing the decision of an administrative tribunal, such as a labour relations board. This is an attempt to exclude judicial review of the administrator’s decision and the court usually interprets such statutory provisions very strictly. They will not give effect to the provision unless there is no way to avoid it. Solutions to Cases 1. M. v. C., 2014 ONSC 567 (CanLII). Courts should extend this concern to children. The best interest of the child should be the focus. The child’s age, physical and emotional constitution, and psychology cannot be ignored. In this case, the social environment the children will live in and how that can be affected must be considered as well as evidence if the children will be harmed by the litigation or if it were made public. An example would be cyber bullying from other children that became aware of the case. The applicant, the 14-year old girl claiming for educational funding from her biological father, continuously posted Internet blogs regarding the case. On the other hand, the public could argue that knowledge of the case could impact a decision made about the parties involved. In this case the court did decide that the file be sealed and the parties referred to by initials. 2. Windrem v. Couture, 2008 SKQB 33 (CanLII). In this case the courts did not order the removal of the indicated paragraph. A verdict of acquittal in a criminal trial as proof that the party did not commit the assault, in this case, is inadmissible in a subsequent civil trial. In the criminal trial the onus was on the defendant to prove his self-defence and that the assault was justified. 3. Wolff v. Momentus.ca, 2014 ONSC 1195 (CanLII). In this case the instructor should encourage students to conduct research on this case. They should, in particular, research the exceptions to the limitation period. 4. Angelo’s Gold Factory Inc. v. Anthony Pipolo Incorporated, 2007 CanLII 80119 (ON SC). After judgment was entered by default, enforcement proceedings commenced. The defendants did not even know of the existence of the law suit. The court set aside the enforcement steps and the default judgment, but ordered the defendants to file and serve a statement of defence within 20 days. Practically speaking, the defendants did not have any opportunity to file a statement of defence before default judgment so procedural fairness dictates a new procedure to now permit them to do so. In both court and administrative processes, reasonable notice is an important part of the administration of justice. 5. Community Panel of the Adams Lake Indian Band v. Adams Lake Band, 2011 FCA 37 (CanLII). A week after the trial judge released the decision, the Supreme Court of Canada issued a decision providing guidance on when an administrative decision should not be quashed by a court even when there are grounds to quash it. Legal error or non-compliance should not be given undue weight and a very broad consideration of practicalities must be considered by the court. The Federal Court of Appeal held that the trial judge did not consider enough practical matters, and upheld the election result. 6. Black v. Canada (Advisory Council for the Order), 2013 FCA 267 (CanLII). The court found that in denying Black on oral hearing there was no principle of the fundamental justice breached. In Baker v. Canada, the right to an oral hearing was not included. The court found that Black could make his case adequately through written submissions. 7. Cabrera v. Canada (Citizenship and Immigration), 2010 FC 709 (CanLII). The applicant had made a request for adjournment so that she could comply with the NCQ requirements. Another hearing was justified since the applicant was making an effort to comply with the NCQ requirements and the misrepresentation did not have bearing on having the hearing. The misrepresentation could be considered during the hearing but should not disqualify the right for a hearing. 8. GNWT v. Beaulieu, 2014 NWTSC 63 (CanLII) The SRO was not correct in screening in Beaulieu on the basis of his diploma and his varied accounting experience. The screening committee accepted the educational equivalency but Beaulieu did not meet the experience criteria. The SRO`s approach would not be appropriate in competitions for which there are several screening criteria. All the criteria need to met for an applicant to be screened in, not one or part of the criteria. The court could consider her error reasonable if the varied accounting experience included some budgeting and contracting experience. Chapter 4 Intentional Torts and Torts Impacting Business Answers to Questions 1. Explain what is meant by the statement, “A tort is a civil wrong.” This means that the action or conduct itself is considered unacceptable behaviour, and gives rise to a private action between individuals whereby a plaintiff can sue a defendant for compensation. This should be contrasted with a breach of contract, or a criminal act. 2. Distinguish between an assault and a battery. An assault is an intentional interference with another party creating fear or apprehension of imminent physical contact. A battery is when actual physical contact actually takes place. A battery may be preceded by an assault but an assault may not be a battery. 3. How do doctors avoid liability for the tort of assault and battery when operating on or otherwise treating patients? The doctor avoids liability because the patient has “consented” to the physical interference. 4. What limitations are there on the right of self-defense when people are defending themselves against an attack? People being physically attacked are only permitted to use as much force as is necessary or reasonable force, to defend themselves. If excessive force is used it constitutes an assault or battery. 5. Describe the situations in which battery may be justified. (1) When there is consent, (2) when reasonable force is being used to eject a trespasser, (3) when defending themselves and using reasonable force, (4) though not mentioned, when the power to arrest is present, the arresting party may use reasonable force to do so. 6. What are the necessary elements that must be present for a person to be classified as a trespasser? The person must intentionally be on land or premises that belong to another and be there without authority. Note that this presence can be in the form of physical presence or some object that has been placed or thrown on the property. 7. What may the proprietor of a business do when faced with an unruly patron? The proprietor can ask the patron to leave. If he fails to leave he becomes a trespasser and the proprietor can use as much force as is necessary to eject the patron. 8. Distinguish between trespass to chattels, conversion, and detinue. Any direct intentional interference causing damage to the goods of another is a trespass to chattels. Conversion consists of interference with the plaintiff’s chattels in such a way that it interferes with the plaintiff’s use of the chattel. Detinue, like conversion, involves the wrongful possession of someone else’s goods. But where conversion requires wrongfully taking control of the goods through some intentional act, detinue deals with situations where the person is wrongfully retaining the goods. 9. Imprisonment can take the form of confinement, arrest or submission to authority. Explain. The classic definition of imprisonment is when a person is confined in a specific place. People can also be imprisoned when they are physically restrained and subdued. When someone purports to arrest someone and insists, in such a way that the person thinks there is no option but to accompany the arresting person or stay in a particular location, that submission to authority can qualify as imprisonment even though there is no physical confinement and no physical restraint. 10. What must be established in order to successfully sue for false imprisonment? (1) That an imprisonment of has taken place and (2) that it took place without the necessary authority. 11. How is malice typically established by a plaintiff who sues in malicious prosecution? Evidence of malice can be established by prosecutors who have chosen to ignore important evidence or by complainants who have lied or manufactured evidence used to improperly support the charges. 12. Distinguish between libel and slander and explain the significance of the distinction. Libel, as a general rule, is written. Slander is spoken defamation. It is easier to succeed in a libel action because libel is actionable without proof of special damages whereas slander must be supported by some indication of actual loss before an action can be successful. Note that certain types of slander are actionable without proof of special damages as well, such as: statements indicating incompetence in relationship to work, immoral activity, noxious disease, and unchaste conduct. 13. Define the terms “innuendo” and “qualified privilege”. An innuendo is a hidden meaning in a statement. Usually it takes place when a statement appears perfectly innocent but, when combined with special information possessed by those hearing it, assumes a different meaning that could be defamatory. Qualified privilege is a defense available in a defamation action when the person making the defamatory statement had a duty or obligation to do so (for example, as part of an employment responsibility). This defense is qualified in that if there is any malicious intent, or if the statement is published more broadly than required by the duty, the protection is lost. 14. Distinguish between defamation, trade slander, and deceit, indicating in what situations each would be used. Defamation is harmful to an individual’s reputation, and may arise in the course of media communication, or employment. Trade slander is harmful to the reputation of a business or a product. If one business attacks another by stating that their products are contaminated or inferior, or the business is struggling and it is not, this gives rise to a claim of trade slander. Deceit is the civil action for fraud, or intentionally misleading another that causes them damage. The deliberateness of the act may also result in punitive damages. 15. Explain the nature of the tort of inducing breach of contract and what circumstances would give rise to such an action. Inducing breach of contract usually involves an employer persuading an employee of another business to leave that employment and work for him or her without properly leaving the current employment contract. Inducing breach of contract can also be committed when one business induces severance of contractual relations with someone else, as when a supplier is persuaded to abandon one customer in favour of another or a customer is persuaded to breach its contract with a competing supplier. 16. How does the tort of unlawful interference with economic relations differ from the tort of inducing breach of contract? When dealing the tort of interference with economic relations, there is no need to prove a breach of contract. However, there must be some other unlawful conduct associated with the complaint, such as bribery or defamation. That unlawful conduct must have been intended to cause harm and, in fact, harm must have resulted. 17. Differentiate between conspiracy and intimidation. A conspiracy to injure takes place when two or more persons act together use unlawful means to injure the business interests of another. Intimidation occurs when the threat of violence or some other illegal activity, such as an illegal strike, is used to force a businessperson to do something that harms the business. 18. List the remedies that may be appropriate to redress misuse of confidential information. The most common remedy is monetary damages. However, equitable remedies such as injunctions and an accounting may also be ordered. 19. Privacy concerns are becoming more problematic in the technological age. What statutes protect the rights of individuals in this area? Federal and Provincial Privacy Acts; the Personal Information Protection and Electronics Documents Act; and Human Rights Acts. 20. How do the Courts determine if they have jurisdiction over a tort action where the Internet is the means of communicating a defamatory message? Jurisdictional problems are one of the most difficult raised by the use of the internet. Where an action for defamation can be brought and who can be sued are examples. Essentially what is necessary is to establish that there is a sufficient link between the action complained of and the province where you wish to bring the action. As a general rule you must seek out your defendant or sue where the offensive conduct took place. This is very difficult to establish where the internet is involved. It also depends on the type of communication involved. If the defamation took place in a private communication such as email to only the potential plaintiff, there may be the problem of publication. Where the comment is made on a web page for all to read the defamation is more clearly established, but still there is the problem of determining where to sue and who should be included as defendants. Solutions to the Cases 1. Chopra v. Eaton (T.) Co. (1999), 240 A.R. 201 (Q.B.); 1999 ABQB 201 (CanLII). Mr. Chopra’s push on Mr. Frauenfeld was a criminal assault and justified a citizen’s arrest. However since Mr. Chopra was not promptly delivered to the police, the detention became a false imprisonment. In addition to suing for false imprisonment there is an action for battery because Mr. Frauenfeld used unreasonable force in carrying out the arrest. Mr. Chopra also successfully complained to the Alberta Human Rights Commission because of the racial slurs. Eaton’s was also found vicariously liable for its employee’s conduct. 2. Banfai v. Formula Fun Center Inc. (1984), 19 D.L.R. (4th) 683 (Ont. H.C.) The owner of the motel sued the owner of the neighbouring land, who leased the land to the racing car amusement ride operator. The noise, fumes and smoke from the track were out of keeping with the other activities in the area and were found to be an unreasonable and undue material interference with the plaintiff’s enjoyment of their property. Although the owner is generally not liable for the actions of a tenant, in this case Ontario Hydro knew and authorized the use of the land for these purposes and was therefore liable as well. 3. 369413 Alberta Ltd. v. Pocklington (2000), 194 D.L.R. (4th) 109, 271 A.R. 280 (Alta. C.A.); 2000ABCA 307 (CanLII) The creditor claimed that Pocklington had induced a breach of contract on the part of Gainers. The court held there were seven requirements for the tort: the existence of a contract, knowledge on the part of the defendant of the contract, a breach of that contract, the defendant induced the breach, intended to induce the breach, it was without justification and the plaintiff suffered damages. There were no issues with regard to the first two elements and the case revolved around whether disposal of the shares was a breach of the financing arrangements. It was held that Pocklington should have known it was a breach, and was willfully blind to the consequences of his actions, which is enough to establish intent. There was no justification for his act, as it was not in the best interests of Gainers and the creditor suffered damages as a result of the breach. 4. Duke v. Puts (2004), 21 C.C.L.T. (3d) 181, 241 Sask. R. 187, 313 W.A.C. 187, [2004] 6 W.W.R. 208 (Sask. C.A.); 2000 ABCA 307 (CanLII). The trial court held Dr. Puts liable in defamation, unlawful interference with contractual relations, and interference with the economic interests of Mr. Duke. The Court of Appeal found that some of the defamatory statements were covered by absolute privilege, but the rest were not. The defence of qualified privilege was defeated by the malicious intent of Dr. Puts. Dr. Puts knew of the contract to sell the pharmacy business and intentionally interfered with the completion of that transaction. He also encouraged a Mr. Rowein to leave his employment with Mr. Dukes. Proof of interference in Mr. Duke’s economic interests was established on the same evidence as the claims of defamation and interference with his contractual relations. The Court of Appeal agreed with the trial judge’s award of $400,000 in damages. Solution Manual for Business Law in Canada Richard A. Yates, Teresa Bereznicki-Korol, Trevor Clarke 9780133847130, 9780132164412
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