Chapter 1 – Law, Society, and. Business.
Defining Law
- law sets basic standards of behavior that are enforced by government and also by
individuals and groups with the help of the government
- legal system applies to al – cannot opt out
Rule of law
- legal principles that treat all persons equally and that government itself obeys
why do we need it?
- Law of governance of conduct
o Protecting person, property and society as a whole – punishment as. Result of
illegal conduct
- Government authority to act (public Law)
o Power to the government to act for the benefit of society
o Creation of and regulation of essential services – policing, firefighting, education,
healthcare
- Governs relationships between people (private Law)
o Enforces legally binding agreements, creates forum for disputes between people.
Public Law
- Regulates the conduct of the government and the relations between government and
private persons
o Ex
 Criminal law, quasi-criminal law (criminal and traffic laws
 Licence (i.e. drives licence, business licences, property standards
Private law
- Regulates the relations between private persons and groups of private persons
- Also known as civil law
- Ex.
o Private contracts
o Family law.
Laws
- Must be complied with i.e. not optional
- Laws must be just so that society views them as fair and people will voluntarily comply
- Laws usually evolve from morals that are accepted by society
- Minimal standards of what is acceptable to mores people in society
Morals and ethics
- Optional standards of behavior that people “ought” to observe, even though not
compulsory
- Integrity, trust and honor
- Higher standard than the law
- Ex. Lying – immoral and unethical but is it always against the law? Sometimes.
Law and Behavior
- What happens when you break the law
o Punishment
o Jail, ticket, fines, etc.
- Understanding that one needs to obey the legal rules
- Penalties and consequences
- Legal liability: responsibility for the consequences of breaking the law.
Criminal Liability
- Responsible arising from commission of an offence as against the fovernment or society
as a whole
- Ex. Commiting an officence contrart ot he co
Regulatory/quasi-criminla liabtily
Civil liability
Why is law important in the business context?
- Affects relationshps with customers, suppliers, employers and the government
- Rules for hwat to do and what not to do.
Legal risk
- Business activities, conduct, events, or scenarios that could expose business to any type
of legal liability
Risk management
- Understanding the law allows business to anticipate possible legal liability and develop
preventative and remedial strategies to guide operational decision making.
Who makes Law
- The constitution
o Constituation act 1867. Aka british north American act.
o Extablished Canada as a country
o Disticket levels of gov – federal and provincial
o Gives the government the power to make laws
o Charter of rights and freedoms
- Legislation
o Statue or acts passed by parlimment (fed) or by provincial legislation under the
authority of the constitution
o Constituation sets out who can make what laws between federal and provincial
laws makers
o Federal statue apply to all Canadians whereas provincals statues onle apply to
each province
o
- The courts
o Common law – judge made law
o Judges must follow the principle of “stare decicions” – found by precedents
o Common law governs unless statue seays difference
o Judges can make
The division of power
- Federal powers Section 01
o Criminal law
o Banks
o Postal service
o Fisheries
o Raising money by taxation
o Trade and commerce
- Provincial powers Section 02
o Healthcare
o Education
o Governing municipal
o Prison
o Property and civil rights in the province
PLUS residuals powers – powers that are within federal jurisdiction because they are not
expressly within provincial jurisdiction (ex. Radio, television broadcasting and air traffic).
Conflicting laws?
- Courts will determine if the legislation is within federal or provincial laws
- If a law is found to be outside the court’s jurisdiction (pro and fed), it is said to be ultra
vires (beyond the powers and therefore void)
- Examples: criminal vs. healthcare
o Recent ex of where this intersects?
 Safe injection sites.
Charter pf rights and freedoms
- Became part of the constitution in 198 (constituation act. 1982)
- Places limits on many aspects of fovernment action and protects human rights
- Everuone in Canada has rights and freedoms contained in the charter
- Entrenched in the constitution – cannot be repealed by an oridinary act or parliament or
provincial law.
- Rights in the charter cannot be infringed by legelsation – igf it does, the lawwill be
declared invalid (to extent that it infringes a charter right)
- The charter only applies to actions of the government – and individual cannot enforce
charter rights on other citizens
Rights and Freedoms
- Fundamental freedoms
o Conscience and religion
o Through, belief, opion, and experession, including freedom of the press and other
media of communication
o Freedom of peaceful assembly and
o Freedom of association
- Legal right
o Whole list
- Equality rights
o Whole list
The charter and business
- Applies to government behavior and not the private sector
- If legislation violates the charter, business can be free from the invalid legislation
- Ex. R v m drug mart ltd 1985
Chapter 2 the machinery of justice
-
Substantive law
o Rights and duties each person has in society
o Privides a set of laws for how peope in society shold be have
o Dinfines rights and reponsibilties in civil law and cromes and punish ments iin
crimila law
- Procedural law
o Rules that deal with how substantive rights and duties may be enforces.
 Reasarhc this.
Legal systems: civil law and common law
- Civil law system (Quebec only)
o Comprehensive set of legislated code derivced from roman law
o All laws collected into consolidated body of legislation – the civil code
o Emphasis on code over court devision
o Code is used to settle disputes
o Decisions makers not found by precedent
- Common law
o Case-base system – based on the recorded resons given by courts of their
decisions
o Court decision are based on precendet based decisions
System of courts
- 1. Courts of first instance (trial courts)
o Where an action is initiated
o Trial takes place – witness questioned, evidence entered, etc
o Judgement is rendered by judge or jury
o Parties – usually plaintiff and defendant
- 2. Court of appeal
o May appeal if dissatisfied with decision of in court of first instance
o Can only appeal an issue of law, not fact. Not a new trial, determining whether
trial judge erred in applying this law
o 3-5 judge.
- 3. Final court appeal
o Supreme court of Canada
o May appeal further if dissatisfied with appeal courts decision
o 9 judges
o Hears appeals from provincial courts and federal court of Canada.
The Courts
- Small claims court – 25k or less
- Provincial division – regulatory offensives, traffic violations
- Superior court justice – above 25k.
- Federal court – federal matters
- Tax court of Canada – tax matters
Procedural law: using the courts
- Steps in an action
o 1. Plaintiff serves “statement of claim” setting out the cause of action against the
defendant.
o 2. Defendant has opportunity to file a “statement of defence” setting out their
reply to the statement of claim and setting out facts that support their defence.
Defendant may consider filing a counterclaim
 Can be done through mail, but now people can get permission to do it on
Facebook.
o 3. Examination for discovery – opportunity to question parties to narrow issues
and exchange documents
o 4. Pre-trial motions (as applicable)
o 5. Pre-trial conference of settlement conference
o 6. TRAIL
o Sometimes going through a trial is really expensive, thousands of dollars. Lawyer
fees. Bias in jury. Time consuming. Risk of not having a strong case.
The trail
- Burden of proof (BOP) – the balance of probabilities.
o Need enough evidence to convince a judge that what you are alleging is “more
likely than not”
o Plaintiff must prove his or her case
o Law is applied to the facts to reach conclusion
- Evidence
o Witnesses are called to provide testimony (their version of the facts)
o Plaintiff and defendant call different witnesses
o Examination in Chief and Cross-Examination
o Must avoid hearsay evidence.
Costs
- Losing party pays portion of winning party’s legal fees (party and part cost)
- Total costs (solicitor0client fee) are usually much higher
- Contingency fees – fee paid for a lawyer’s services only if the client is successful. There
is no charge if client is unsuccessful.
o Ex. Class actions, personal injury matters.
Settlement
- Prior to trial, parties come to an agreement for the payment of sum of money to one party
in exchange for the other party waiving all rights arising from the facts fiving rise to the
complaint and withdrawing the action.
- Settlement rate in Ontario is reported to be as high as 96%
- Quicker resolution – trial process can take years to complete
- Avoids expense of litigation – trial should be last resort.
Alternative Dispute Resolution (ADR)
- Arbitration
o An arbitrator adjudicates matter, hearing evidence from both party’s, and party’s
agree to be bound by the arbitrator’s decisions.
- Mediation
o Neutral third party selected by both sides acts as a mediator and assists parties in
reaching settlement.
- Why ADR?
o Speed
o Costs
o Choice of adjudicator/mediator
o Confidentiality
o Preserve relationships – reduce fighting.
Next week
chapter 4 – the law of torts
chapter 5 – professional liability.
Read page 5 on syllabus.