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APPENDIX C-2
Thompson Rivers University
Application for the Approval
of a
New Law Degree Program
June 24, 2010
APPLICATION FOR THE APPROVAL OF THE
LAW DEGREE PROGRAM AT
THOMPSON RIVERS UNIVERSITY
June 24, 2010
Table of Contents
Introduction .................................................................................................................................................. 2
Academic and Learning Resources Requirements - Institutional Requirements of Law Schools ................. 4
Admission to TRU Law School ............................................................................................................... 4
Length of Program ................................................................................................................................ 4
Nature of Instruction and Learning....................................................................................................... 5
Instruction in Ethics............................................................................................................................... 5
Resources .............................................................................................................................................. 5
Qualified Faculty ................................................................................................................................... 6
Physical Resources ................................................................................................................................ 6
Information and Communication Technology ...................................................................................... 6
Law Library ............................................................................................................................................ 6
Compliance ................................................................................................................................................... 7
Specific Competency Requirements ............................................................................................................. 8
Skills Competencies............................................................................................................................. 10
First Year Courses........................................................................................................................................ 12
Required Second Year Courses ................................................................................................................... 14
Required Third Year Courses....................................................................................................................... 16
Conclusion ................................................................................................................................................... 37
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APPLICATION FOR THE APPROVAL OF THE LAW DEGREE
PROGRAM AT THOMPSON RIVERS UNIVERSITY
Introduction
The Federation of Law Societies of Canada, having established the Ad Hoc Committee
on Approval of New Canadian Law Degree Programs, has established a number of
requirements to be met by new Law Schools in order that they be approved by the
Federation. Approval of the Law Program entitles graduates of the Program to apply for
admission to Canadian law societies and, thus, begin the process of admission to
practice law in their chosen Canadian jurisdiction(s).
The new Law School at Thompson Rivers University (TRU) hereby applies for approval
of its Law Degree Program. The Law School Program at TRU will meet the National
Requirements as established in the Final Report of the Task Force on the Canadian
Common Law Degree (Final Report). This submission addresses each of the National
Requirements and respectfully requests approval of the Program by the Federation.
TRU Law School is committed to teaching excellence, to the establishment of a learning
environment which combines experiential learning with the highest quality
comprehensive education, blending substantive knowledge with the acquisition of skills
necessary to effectively utilize this knowledge to practical effect. The students at TRU
Law School will graduate with a high quality, professional education equipping them to
practise law in all its manifestations. The Law School is also committed to the highest
level of legal research and scholarship and to playing a significant role in the legal
profession and in the community at large.
The Law School at TRU was conceived and established as a community project. The
University, the legal profession in Kamloops and interior British Columbia and the
communities themselves recognized the need for a new Law School at TRU and
ensured its establishment. These same partners continue to be integral to the building,
growth and quality of this new Law School at TRU. In particular, the relationship with the
legal profession will enable the Law School to provide a legal education which is rich
and multi-dimensional, and which will provide law students with a diverse store of
knowledge and set of skills which prepares them well for their careers in the Law.
Students will benefit from and learn a range of advocacy, clinical, dispute resolution and
mooting skills to prepare them for their legal careers. Enshrined in students will be a
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recognition of the importance of life-long learning in the Law, a commitment to
expanding their knowledge and skills horizons, a commitment to the highest standards
of ethical and professional responsibility rightly expected of lawyers and a full
appreciation of the human element in the work of lawyers. The Law Program will ensure
the development of competent, talented, creative, imaginative and sensitive
professionals capable of taking on the challenges of a fast- and ever-changing world.
The Final Report sets out the criteria for approval in three areas: (i) Competency
Requirements; (ii) Academic and Learning Resources Requirements and (iii)
compliance.
This application will address each in turn and indicate the manner in which the Law
School Program at TRU will satisfy each of them. It is important to recognize that, as the
Law School at TRU is at a nascent stage, this application will indicate the steps taken to
date to gain approval of its Program together with the steps that will be taken in the
future. Nonetheless, the Memorandum of Agreement - with the University of Calgary
Faculty of Law, which will see TRU Law School offer a degree of Juris Doctor (JD) in
conjunction with Calgary and, which will have TRU adopting the University of Calgary
Faculty of Law curriculum and course syllabi, establishes, from the outset, that the Law
Program at TRU will exceed the requirements established by the Final Report.
TRU shares the University of Calgary Law School‘s objectives with regard to the
undergraduate law program and to its focus on legal education in its broad sense.
These objectives are set out in the Calgary Law School‘s website as follows:
Objectives of the LL.B. Program
1. Introduce students to the recognized substantive areas of law, so that they are
exposed to and have knowledge of fundamental legal concepts and processes
within our legal system, as well as an appropriate basis for skill development.
2. Introduce students to a diverse range of legal skills, so that they are aware of the
broad ambit of the lawyer’s function within society, and can embark upon the
process of learning, analysing, using and refining these skills.
3. Introduce students to the legal system and the institutional setting in which law is
developed, applied and changed.
4. Demonstrate to students that there are a number of different ways of resolving
legal disputes and to provide them with the knowledge necessary to choose the
most appropriate process.
5. Familiarize the students with the ethical and professional responsibility
dimensions of law and its practice.
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6. Provide students with some appreciation of the social, economic, historical,
political and philosophical environment in which our legal system has developed
and currently operates, so that they can recognize the many factors, influences
and values which affect the shape and substance of the law and upon which the
law impacts.
7. Make students aware of the fact that law is based on different value systems that
are often in competition with one another and that balancing them can be difficult.
8. Give students the opportunity to integrate doctrine, skills and policy in order to
understand the actual workings of the law.
9. Expose students to the idea that law is only one part of a system of knowledge
and offer them opportunities for developing skills in working with people and
material from other disciplines.
10. Demonstrate to students the human element in the practice of law.
11. Help instil in students a sense of obligation to be full contributing members of
their communities.
12. Provide the understanding and the tools necessary to make students life long
learners who are able to adapt their skills and knowledge to situations of rapid
change.
Academic and Learning Resources Requirements Institutional Requirements of Law Schools
TRU Law School will continue working closely with the University of Calgary Law School
in the years ahead. Included in this co-operation will be measures to address, inter alia,
the institutional requirements recommended by the Final Report.
Admission to TRU Law School
The recommended requirement of the Final Report that the ―subject to special
circumstances, the prerequisite for entry to law school must at a minimum include
successful completion of two years of postsecondary education at a recognized
university or CEGEP,‖ will be TRU Law School‘s entry criteria.
Length of Program
The recommended requirement of the Final Report that the ―law school's academic
program for the study of law must consist of three academic years or its equivalent in
course credits‖ will be the program at TRU Law School.
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Nature of Instruction and Learning
The recommended requirement of the Final Report that ―the course of study must
consist primarily of in-person instruction and learning and/or instruction and learning
that involves direct interaction between instructor and students‖ will be the methodology
followed at TRU Law School.
Instruction in Ethics
The recommended requirement of the Final Report that ―the academic program includes
instruction in ethics and professionalism in a course dedicated to those subjects‖ will be
the case at TRU Law School.
The Final Report emphasizes the importance of law school graduates demonstrating an
awareness and understanding of the ethical requirements for the practice of law in
Canada, and of the duty to communicate with civility, the ability to identify and address
ethical dilemmas in a legal context, having a familiarity with the general principles of
ethics and professionalism applying to the practice of law in Canada, including those
related to: circumstances that give rise to ethical problems, the fiduciary nature of the
lawyer's relationship with the client, conflicts of interest, lawyers‘ duties to the
administration of justice and duties relating to confidentiality and disclosure, an
awareness of the importance of professionalism in dealing with clients, other counsel,
judges, court staff and members of the public, and the importance and value of serving
and promoting the public interest in the administration of justice.
TRU Law School sees this aspect of legal and professional education as being an
integral part of the Law School‘s purpose and function. As well as ensuring that all
students take a designated course in Ethics and Professional Responsibility (which the
Calgary curriculum entitles, Ethical Lawyering, see below) TRU Law School intends to
make Ethics and Professional Responsibility an integral part of its first year and second
year curriculum. This integral component of being a law student and a practicing lawyer
will be part what first year law students learn from the very outset of their legal studies
and what second and third year law students have instilled in them throughout their law
school careers.
Resources
The recommended requirement of the Final Report that ―the law school must be
adequately resourced to meet its objectives‖ will be fulfilled at TRU Law School.
Thompson Rivers University is a public institution with a financial surplus and it budgets
every year to have a financial surplus. The Board of Governors has committed to
adequately fund the Law School and tuition fees will be set accordingly.
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Qualified Faculty
The recommended requirement of the Final Report that ―the law school must have
appropriate numbers of qualified academic staff to meet the needs of the academic
program‖ will be satisfied. The initial focus – leading up to the academic year 2011-12
will be on appointing the number of faculty members, with suitable qualifications and
expertise, required to offer the First Year curriculum, as set out elsewhere.
When the University of Calgary Law School opened in 1976 it admitted 60 students into
its inaugural first year class and it had 9 faculty members. The first Dean of Law, John
McLaren, took up his appointment in July, 1975. In 1977-78, with both a first year and a
second year class, the Calgary Law School expanded to 115 students and 14 faculty
members. In its third year of operation (i.e., with first, second and third year students)
the student body comprised 170 students and there were 18 faculty members.
In 2011, the new Law School at TRU expects to admit the same number of students as
Calgary did in 1976 and to have the same number of fully qualified faculty members.
Physical Resources
The recommended requirement of the Final Report that ―the law school must have
adequate physical resources for both faculty and students to permit effective student
learning‖ will be satisfied, again, initially, focusing on the requirements for the first cohort
of First Year students in September 2011, leading to the establishment of physical
resources necessary to appropriately accommodate second year students in 2012-13
and a full cohort of first, second and third year students from 2013-14 on.
At the outset, the Law School will be located in the House of Learning, being
constructed on campus and scheduled for completion by January 2011.The Board of
Governors has recently approved plans for the construction of a new Law School.
Construction for the new Law School will commence in 2011 with occupancy scheduled
for Spring 2014.
Information and Communication Technology
The recommended requirement of the Final Report that - ―the law school must have
adequate information and communication technology to support its academic program‖
will be satisfied. Indeed, the Law School will be a ―state of the art‖ facility both while it is
located in the House of Learning and when it occupies its own facilities.
Law Library
The recommended requirement of the Final Report that – ―the law school must maintain
a law library in electronic and/or paper form that provides services and collections
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sufficient in quality and quantity to permit it to foster and attain its teaching, learning and
research objectives‖ will be satisfied. An expert consultant will assist in the development
of the Library, to report on library and legal standards, best practices in academic law
libraries, and recommendations on core library legal resources. TRU Law School is
appreciative of the funding received from the Law Foundation of British Columbia in
order to conduct this work.
The TRU Library has experience in developing print and digital library collections to
support new graduate and undergraduate programs. The TRU Library welcomes
advice and information about best practices and current trends in law library materials
and legal publishing. The TRU Law School and the Library will work closely with the
University of Calgary Law School Library to develop library collections that relate to the
TRU/University of Calgary curriculum. The TRU Library will consult with the TRU law
faculty to ensure that library materials, both core and supplemental, are available for
students in their courses.
The TRU Library aims to establish a balanced collection of both print and online
resources. Collaborative initiatives and partnerships will be pursued to develop a
strong academic law library collection and services for the TRU Law School. The TRU
Library Director is a member of the Canadian Association of Law Libraries and the
Directors group, and has met with colleagues to discuss collections, services and space
requirements for study and teaching.
The scope of the TRU Library law collections will cover the common law countries of
Canada, the United States, the United Kingdom, Australia, and New Zealand. Relevant
online subscriptions to legal sources such as QuickLaw, WestlaweCarswell, and
LexisNexis will also be arranged. Primary and secondary legal resources are
increasingly available online, and the TRU Library will seek innovative ways for the TRU
Law School faculty and students to have access to digital content and tools. The Law
Library will ensure access to all of these sources and provide the necessary IT support
to sustain these services.
Compliance
(See Final Report of the Task Force: Recommendation 5)
Further, from the outset, Dean of Law at Thompson Rivers University will complete the
required report confirming that the law school has conformed to the academic program
and learning resources requirements and will explain how the program of study ensures
that each graduate of the law school has met the competency requirements.
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Specific Competency Requirements
(See Final Report of the Task Force: Recommendations 2 and 3)
The Competency Requirements established by the Final Report are of three types: (i)
Skills Competencies, comprising Problem-Solving, Legal Research and Oral and
Written Communication; (ii) Ethics and Professionalism and (iii) Substantive Knowledge.
The Final Report stipulates as follows:
B. Competency Requirements
1. Skills Competencies
The applicant must have demonstrated the following competencies:
1.1 Problem-Solving
In solving legal problems, the applicant must have demonstrated the ability to,
a. identify relevant facts;
b. identify legal, practical, and policy issues and conduct the necessary research
arising from those issues;
c. analyze the results of research;
d. apply the law to the facts; and
e. identify and evaluate the appropriateness of alternatives for resolution of the
issue or dispute.
1.2 Legal Research
The applicant must have demonstrated the ability to,
a. identify legal issues;
b. select sources and methods and conduct legal research relevant to Canadian
law;
c. use techniques of legal reasoning and argument, such as case analysis and
statutory interpretation, to analyze legal issues;
d. identify, interpret and apply results of research; and
e. effectively communicate the results of research.
1.3 Oral and Written Legal Communication
The applicant must have demonstrated the ability to,
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a. communicate clearly in the English or French language;
b. identify the purpose of the proposed communication;
c. use correct grammar, spelling and language suitable to the purpose of the
communication and for its intended audience; and
d. effectively formulate and present well reasoned and accurate legal argument,
analysis, advice or submissions.
2. Ethics and Professionalism
The applicant must have demonstrated an awareness and understanding of the ethical
requirements for the practice of law in Canada, including,
a. the duty to communicate with civility;
b. the ability to identify and address ethical dilemmas in a legal context;
c. familiarity with the general principles of ethics and professionalism applying to
the practice of law in Canada, including those related to,
i. circumstances that give rise to ethical problems;
ii. the fiduciary nature of the lawyer's relationship with the client;
iii. conflicts of interest;
iv. duties to the administration of justice;
v. duties relating to confidentiality and disclosure;
vi. an awareness of the importance of professionalism in dealing with
clients, other counsel, judges, court staff and members of the public; and
vii. the importance and value of serving and promoting the public interest
in the administration of justice.
3. Substantive Legal Knowledge
The applicant must have undertaken a sufficiently comprehensive
program of study to obtain an understanding of the complexity of the law and the
interrelationship between different areas of legal knowledge. In the course of this
program of study the applicant must have demonstrated a general understanding of the
core legal concepts applicable to the practice of law in Canada, including as a minimum
the following areas:
3.1 Foundations of Law
The applicant must have an understanding of the foundations of
law, including,
a. principles of common law and equity;
b. the process of statutory construction and analysis; and
c. the administration of the law in Canada.
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3.2 Public Law of Canada
The applicant must have an understanding of the core principles of public law in
Canada, including,
a. the constitutional law of Canada, including federalism and the distribution of
legislative powers, the Charter of Rights and Freedoms, human rights principles and the
rights of Aboriginal peoples of Canada;
b. Canadian criminal law; and
c. the principles of Canadian administrative law.
3.3 Private Law Principles
The applicant must demonstrate an understanding of the foundational legal principles
that apply to private relationships, including,
a. contracts, torts and property law; and
b. legal and fiduciary concepts in commercial relationships.
The arrangement between the TRU Law School and the University of Calgary Law
School will see TRU adopting and using Calgary‘s curriculum. This will ensure the
competencies set out in the Final Report are met by each graduate of TRU Law School.
Skills Competencies
The skills competencies identified by the Final Report as necessary prerequisites for
Law School graduates to enter the articling phase of their legal education and
professional training form the foundation of any effective Law School education. These
skills competencies may be seen as falling into two broad categories – both of which
are essential to the effective performance of a lawyer‘s role, in its many potential
manifestations.
Law students need to acquire knowledge of substantive law, in particular of those
fundamental areas of law which form the basis of Canada‘s legal regime. These subject
areas are primarily learned in First Year, but there are also subjects in Second Year and
in Third Year which fall into this category. Courses in these subjects are both
substantive or academic and skills-oriented. It can fairly be said that, without these
basic courses, law graduates will not be as well-prepared for their stints as articling
students nor for the professional responsibilities they will be expected to perform as
practising lawyers or in the wide range of roles lawyers can be expected to carry out.
In the process of learning a core of substantive legal knowledge, law students will need
to acquire the analytical skills necessary to function effectively as a lawyer. TRU Law
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School students will learn to be comfortable with, and competent at, identifying relevant
facts, legal, practical, and policy issues and at conducting the necessary research
arising from those issues, as well as analyzing the results of research, applying the law
to the facts and identifying and evaluating the appropriateness of alternatives for
resolution of the issue or dispute.
Each of these identified, critically important, skills will be acquired in the compulsory first
year courses through appropriate teaching methodologies and tasks and through
appropriate evaluation techniques. These learned skills will then be honed and
augmented during upper year legal studies.
The major objective in first year courses, in addition to the acquisition of substantive
legal knowledge, is for students to learn to ―think like a lawyer‖ with all that this entails.
They will learn to separate relevant and pertinent facts from those upon which the issue
does not hinge. They will become comfortable with analyzing the legal, social and
practical issues at stake. They will also learn the research skills they will need to
effectively analyze problems and issues they face. Further, students will learn how to
apply the law they have identified to the facts at hand, and they will learn how to choose
and assess the various potential resolutions suggested by their research and analysis.
All of this is the ―bread and butter‖ of first year and some upper year courses upon
which the Law School at TRU will focus.
These analytical and academic skills, and this knowledge base, will be matched to the
acquisition of a set of research skills upon which all lawyers call on a regular basis to
search out appropriate sources and data to enable them to resolve the issues presented
to them. The Final Report sets out a number of research-related skills students will need
to acquire. TRU law students will learn these skills throughout their Law School careers.
From their first year studies through to, and including, third year, students will learn to
be familiar, and comfortable, with these required skills through a multitude of different
tasks and techniques, including, case briefs, class discussion, drafting exercises,
mooting and debating opportunities, alternative dispute resolution exercises and
required written research projects. They will learn to effectively identify legal issues,
select sources and methods and conduct legal research relevant to Canadian law, use
techniques of legal reasoning and argument, such as case analysis and statutory
interpretation, to analyze legal issues, to identify, interpret and apply results of research,
and, to effectively communicate the results of their research.
Students at TRU Law School will acquire the high quality oral and written
communication skills they will need to function effectively as lawyers, in whatever
capacity they find themselves. They will learn to communicate clearly in English – the
language of instruction at TRU. They will be encouraged to be proficient in French,
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where appropriate. Students will learn to identify the purpose of any proposed
communication, to use correct grammar, spelling and language suitable to the purpose
of the communication and for its intended audience, and to effectively formulate and
present well-reasoned and accurate legal argument, analysis, advice and submissions.
The basics of these skills will be learned in the first year course entitled Fundamental
Legal Skills (elaborated upon below). Again, these skills will be honed and improved
upon in upper year courses and in the various mooting and debating opportunities
available to students, both inside the Law School and in National and International
competitions identified below, as well as throughout the curriculum.
The Program will ensure students throughout their Law School career have the
opportunity to participate in a range of mooting and related activities.
There follows the Curriculum at Calgary Law School which will form the curriculum at
Thompson Rivers University:
First Year Courses
LAW 400 Constitutional Law, F, 5 credits (3-0)
The basic elements of Canadian constitutional law. The nature of constitutions and
constitutional processes; principles of constitutional interpretation; constitutional
amendment; Federal/Provincial distribution of legislative powers including the federal
general power, natural resources and public property, provincial property and civil
rights, trade and commerce, provincial taxation, transportation, communications, and
criminal law; the Canadian Charter of Rights and Freedoms including principles of
limitation, remedies, interpretation, application, fundamental freedoms, democratic and
language rights, mobility rights, legal rights, equality rights, and aboriginal people‘s
rights.
LAW 401 Legal Perspectives, H, 3 credits (3-0)
An introduction to legal and judicial reasoning. An examination of various legal theories
including natural law, positivist, Realist, liberal, feminist and other legal perspectives.
LAW 402 Contracts, F, 5 credits (3-0)
A legal and policy analysis of the basic principles and fundamental concepts of the law
of contracts as they relate to commercial and consumer transactions. The formation of
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contracts including offer and acceptance and, consideration; estoppel; privity; terms of
contract, including exemption clauses; standard form contracts; bailment; mistake,
misrepresentation and unconscionability; termination, including the doctrine of
frustration; breach and remedies for breach; dispute resolution processes. Emphasis is
placed not only on a knowledge of rules and principles, their historical derivation,
rationale, efficacy and social validity, but also upon their creative use to both avoid and
resolve disputes.
LAW 403 Legislation, Administration and Policy, H, 3 credits (3-0)
The fundamentals of the legislative process: policy development, legislative drafting,
public bill process, statutory interpretation. The interaction of law and policy in the
development of legislation, statutory interpretation and the work of administrative
tribunals. The fundamentals of the administrative process: subordinate legislation;
administrative institutions, forms of dispute resolution, delegation, discretion, process
and judicial review. Substantive law connections are made with other first year courses.
The functions of the lawyer within these processes are examined, including issues of
professional responsibility. Emphasis is placed on skill development in oral advocacy
and drafting both legislation and private law documents.
LAW 404 Property, F, 5 credits (3-0)
An examination of the fundamental concepts of property law and the types of property
interests recognized by Anglo-Canadian law. The historical evolution of property
concepts; the basic concepts of possession, ownership and title; estates and other
interests in land such as joint and concurrent ownership, easements, covenants,
licences, mortgages, future interests and perpetuities; the landlord and tenant
relationship; the land titles system of registration of title to land; the social constraints
upon property use and disposition; and property rights of aboriginal peoples.
LAW 405 Fundamental Legal Skills, F, 4 credits (4-0)
An introduction to legal method, systems and institutions; sources of law; legal analysis,
including case analysis and problem-solving skills; court systems; precedent, stare
decisis; legal writing and communication, including memoranda and facta; oral
advocacy, including mooting; research data bases and legal research skills.
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Note: This course is Graded CR, D or F
LAW 406 Torts, F, 5 credits (3-0)
An analysis and critique of the law of torts, primarily the law of negligence, with personal
injury as the main focus, although other torts will also be introduced. The nature of tort
law and its process; an anatomy of the law of negligence — the nature and extent of
liability, defences, remedies, and the assessment of damages; intentional torts;
economic torts; strict liability; bailment; the impact of private insurance on the tort
system; alternative forms of compensation.
LAW 410 Crime: Law and Procedure, F, 5 credits (3-0)
An anatomy of criminal conduct and the law‘s treatment of it utilizing a limited range of
criminal offences. The designation of human conduct as criminal and a consideration of
the social, cultural and political forces involved; the development of the criminal process
in English common law, its translation to Canada and embodiment in the Criminal Code;
the substantive elements of a criminal offence including both the physical and mental
elements; the common law and code defences; procedural, tactical, ethical and
evidential problems associated with criminal prosecution at both the pre-trial and trial
stages; the sentencing process; the position at law of the victim.
LAW 411 Dispute Resolution I: Interviewing and Counselling, H, 1 credit (1-0)
An introduction to dispute resolution, including: conflict analysis; an overview of dispute
resolution processes; fact-finding through client interviewing; client-centred client
counselling; ethical issues.
Note: This course is Graded CR, D or F
Required Second Year Courses
Full-time students are required to select a pattern of subjects which together with Law
503, 505, 507, 510 and Law 513 amount to no more than 36 credits for the year and no
less than 30 credits. The total credits for each session shall not exceed 18 credits nor
be less than 12 credits. In certain circumstances the credit maximums may be
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exceeded with permission of the Associate Dean. Part-time students in the second year
of the LL.B. program are required to select a pattern of subjects which together with
Law 503, 505, 507, 510 and Law 513 amount to no more than 36 credits for the second
year of the LL.B. program and no less than 30 credits. The total credits for part-time
students for each session shall not be less than 9 credits.
LAW 503 Administrative Law, H, 3 credits (3-0)
This course introduces students to the general structure of administrative decisionmaking in Canada: how public administrators obtain power and how that power is
exercised both at the level of individual adjudication and at the level of the
establishment of public policy. It also introduces students to the checks which courts
place on the exercise of administrative power. The course discusses the procedures
that courts require of administrative agencies and public officials as well as the
substantive grounds on which courts may review the decisions of administrative
agencies and public officials.
LAW 505 Civil Procedure, H, 3 credits (3-0)
A detailed examination of issues which arise in the progress of a civil action from first
meeting the client through to judgment in the Alberta Court of Queen‘s Bench. The
Alberta Rules of Court are set in the context of the values underlying them. What sort of
civil litigation system do we want? What sort of system do we in fact have? Particular
attention is paid to the linkages between the apparently discrete components of the
process as set out in the Rules, linkages at the levels of both the underlying values and
of actual practice. The use of procedures under the Rules to anticipate and resolve
evidence problems that might arise at trial is stressed. Interprovincial and internationals
aspects of the civil litigation process are also considered.
LAW 507 Evidence, H, 3 credits (3-0)
An examination of the fundamental concepts of evidence law, including the traditional
rules as compared to the emerging principled approach, and such core and primary
topics as: the adversary system; relevance and discretionary exclusion; privilege;
burdens of proof; character evidence; judicial notice; competence and compellability;
examination of witnesses; hearsay; opinion evidence.
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LAW 510 Ethical Lawyering, H, 3 credits (3-0)
An introduction to issues of legal ethics and professional responsibility. Students should
become competent at ethical reasoning in the context of legal practice. To achieve this
goal the course covers selected topics in the ‗law of lawyering‘ (e.g. the Law Society of
Alberta‘s Code of Professional Conduct) but also addresses the general question of
what it means to be an ethical lawyer. Students are expected to develop their
awareness of the various moral values underlying the legal system, and to practice how
to weigh and apply those values, and the law of lawyering, to ethical problems. The
course also covers selected topics relating to the regulation of lawyers‘ ethics.
LAW 513 Dispute Resolution II: Negotiation and Mediation, H, 3 credits (3-0)
An overview of the spectrum of the consensual dispute resolution process, including
negotiation, collaborative lawyering, mediation, and judicial dispute resolution (JDR).
The emphasis is on interest-based bargaining and mediation.
Note: This course is Graded CR, D or F
Required Third Year Courses
Full-time students are required to select a pattern of subjects which together with Law
607 and Law 611 amount to no more than 36 credits for the year and no less than 30
credits. The total credits for each session shall no exceed 18 credits nor be less than 12
credits. In certain circumstances the credits may be exceeded with the permission of the
Associate Dean. Part-time students in the third year of the LL.B. program are required
to select a pattern of subjects which together with Law 607 and Law 611 amount to no
more than 36 credits for the third year of the LL.B. program and no less than 30 credits.
The total credits for part-time students for each sessions shall not be less than 9 credits.
Note: Law 607 Legal Research can be taken in either second or third year..
LAW 607 Legal Research, H, 2 credits (2-0)
This course builds on legal research instruction in the first year of the program and
affords further opportunities to learn and practice research skills. The course provides
instruction in research methodology, citation, print and electronic research/databases,
covering case law, statute law, texts, periodicals and web-based materials.
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LAW 611 Dispute Resolution III: Adjudication, H, 3 credits (3-0) An overview of the
binding, third-party decision making processes of dispute resolution, and their
commonalities and differences. The focus is on two of the following three adjudication
processes: arbitrations, administrative hearings and trials.
Note: This course is Graded CR, D or F
Optional Upper-Year Courses
LAW 509 Business Associations
The common forms of business organization, including the law of agency, partnerships,
limited partnerships, and societies and corporations, with a focus on the corporation and
the rights and responsibilities of shareholders and directors.
LAW 511 Criminal Process
A survey and critical examination of core aspects of criminal process law. A focus on
legislation relating to jurisdiction and modes of trial including obligations of and options
available to prosecution and accused. Other topics include arrest, search and seizure,
investigative detention, and right to counsel and silence, all within the context of the
Charter of Rights and Freedoms.
LAW 515 Family Law
An analysis of the legal principles affecting the rights and responsibilities of the
members of the family. Topics include constitutional issues, marriage, marriage
contracts, common law marriage, child neglect and abuse, custody and access,
guardianship, adoption, separation, divorce, nullity, spousal and child maintenance, and
matrimonial property. Stress is placed on the process of family law and the appropriate
role for lawyers and judges.
LAW 519 Jurisprudence
A critical inquiry into the nature and functions of law and justice, including natural law,
legal positivism, sociological jurisprudence, legal realism, and contemporary theorists.
17
LAW 521 Real Estate Transactions
An examination of the estate transactions. Topics include the purchase and sale of
property, mortgaging and other ways to finance land transactions, commercial leasing
arrangements, and the Land Titles Act as it relates to land development.
LAW 525 Bankruptcy and Restructuring Law
Receivership, consumer and commercial arrangements and bankruptcy under the
Bankruptcy Act and the Company Creditors Arrangements Act.
LAW 527 Basic Tax Law
The basic language and concepts of taxation and identification of taxation issues.
Topics include the unit of taxation, the meaning and taxation of income, taxation of
benefits, the type and scope of deductions available for business income, and the
taxation of capital gains including gains (and losses) on taxpayer assets.
LAW 529 Biotechnology and the Law
The legal, ethical, and policy issues relating to biotechnology. Topics include genetically
modified foods, animals and plants, synthetic genomics, animal-human combinations,
xenotransplantation, human cloning, pharmacogenetics, biofuels, assisted human
reproduction, stem cells, tissue engineering, genetic therapy, and genetic enhancement.
LAW 531 Environmental Law
Legal theories, concepts, principles, and processes relevant to environmental
protection. Topics include ecological and ethical dimensions, jurisdictional issues,
common law rights and remedies, environmental assessment, public participation,
contaminated sites, enforcement and compliance, economic approaches, endangered
species and protected spaces, land use planning, and environmental dispute resolution.
18
LAW 533 Wills and Estates
The preparation, execution, interpretation, and administration of wills; testamentary
capacity; alteration, revocation and republication of wills; intestate succession;
dependants‘ relief; and estate administration.
LAW 535 Secured Transactions
The modern law of secured transactions and the financing of personal property, with a
focus on Alberta's Personal Property Security Act. Other topics include Bank Act
security, the Farm Implement Act, and the Fair Trading Act.
LAW 537 Sale of Goods
The sale and supply of goods, including an examination of the provincial Sale of Goods
Act, consumer protection issues, and the Vienna International Sales Convention.
LAW 543 Intellectual Property Law
Intellectual property, including the law of patents, copyrights, and trade-marks.
LAW 547 Human Rights Law
A survey of national and provincial human rights laws and practice as distinct from the
Charter of Rights and Freedoms, and an introduction to the main international and
transnational human rights instruments and standards.
LAW 549 International Law
The elements of public international law, including sources, the role of customary law,
the law of treaties, recognition, state responsibility, and the roles and powers of
international organizations.
19
LAW 551 Unjust Enrichment
Unjust enrichment as an independent source of legal obligation. Topics include
elements of the right of action and defences; restitution as the remedy, with particular
emphasis on personal versus proprietary restitution; and disgorgement of wrongful gain,
distinguished from restitution using breach of fiduciary obligation as the primary
example.
LAW 553 Insurance Law
The various types of insurance (e.g. fire, life, sickness and accident, motor vehicle, and
liability). Topics include the nature and formation of the insurance contract, the role of
insurance agents, insurable interest, misrepresentation and non-disclosure, and the
rights of third parties against the insurer.
LAW 557 Commercial Arbitration Law
Private (between individuals) and mixed (investor/state) arbitration. Coverage includes
domestic and international arbitration rules, including UNCITRAL and International
Centre for the Settlement of Investment Disputes (ICSID) rules.
LAW 559 Critical Legal Theories
An examination of critical theoretical perspectives on the nature and functions of law,
and of the possibilities and limitations of law as a strategy for social change.
Perspectives may include feminist legal theories, critical race theories, post-colonial
theories, Aboriginal legal theories, critical disability theories, queer theories, and
postmodernism.
LAW 561 Employment Law
The law governing non-unionized workplaces in Canada. Topics include constitutional
jurisdiction, defining the employment relationship and employer / employee status, the
employment contract, implied rights and obligations, termination, reasonable notice of
dismissal, constructive dismissal, cause for summary dismissal, human rights, and
employment standards legislation.
20
LAW 563 International Human Rights and Humanitarian Law
International human rights law, covering the main global instruments (such as the
International Covenants, as well as the regional human rights systems of the Americas
and Europe), with an introduction to the principles and concepts of International
Humanitarian Law. Topics include women‘s human rights, death penalty, massive
human rights violations, human rights and counter-terrorism, the rights of the child, the
rights of indigenous peoples and minorities, and the role of non-state actors.
LAW 565 Internet Law
The Internet as a technology, a place for social interaction, and a marketplace. Topics
include internet governance, network neutrality, end to end and layered principles, the
domain name system, peer production and distribution, information security and privacy,
ISP regulation, regulation of internet content, electronic commerce, VOIP regulation,
and anti-circumvention law.
LAW 567 Law and Economics
An examination of the practical and theoretical implications arising from the application
of economic reasoning to law. Topics include the economic method of legal analysis,
the scope of its application, and the major critical responses in both traditional legal
fields of economic influence (such as tort, contract and corporate law) and more novel
areas (such as family and criminal law).
LAW 569 Law and Literature
The ways in which literary studies inform law and legal analysis, and the ways in which
law and legal themes have informed literature.
LAW 571 Oil and Gas Law
The upstream oil and gas industry. Topics include ownership of oil and gas and split
estates; coalbed methane; the legal character of the private oil and gas lease; the
anatomy of the various clauses of the oil and gas lease; and Crown disposition systems,
21
including the Alberta (conventional and oil sands) and federal legislation and related
policy question.
LAW 573 Public Lands and Natural Resources Law
The protection, exploitation, and management of Crown-owned lands and renewable
and non-renewable natural resources (other than oil and gas, and including forestry,
rangeland, minerals, wildlife, fisheries, wilderness, recreational, and heritage).
Discussion of the nature of public ownership, public and private values, economic
approaches, and inter-jurisdictional management.
LAW 575 Remedies
Judicial remedies at common law and equity for tort and breach of contract, including
personal injury and property damage. Themes include compensating loss, disgorging
gain, and punishing civil wrong; prohibiting and compelling defendant behaviour; lossbased, gain-based, and punitive damages; and injunctions and specific performance.
LAW 577 Tax Policy
Principles of tax policy (efficiency, equity, and simplicity) and applications related to
income, sales, and payroll taxes. Topics include the economic and distributive effects
of taxes, auditing and legal compliance, and political economy.
LAW 579 Theoretical Foundations
Critical examination of the main theoretical writings in a major doctrinal area or group of
doctrinal areas, such as private law (tort, contract and unjust enrichment); public law
(criminal, Constitutional and administrative law); tort; contract; evidence; property;
Constitutional; or criminal law.
LAW 581 Unsecured Creditors’ Remedies
The remedies available to the unsecured creditor for the collection of debts and the
protections offered to debtors, including prejudgment remedies, garnishment, execution
22
against real and personal property, fraudulent preferences and conveyances, and the
regulation of collection and credit agencies.
LAW 583 Water Law
Water resources and management, including the historical and current legal and policy
frameworks governing surface and groundwater rights. Topics include responses to
scarcity, alternative water management models and plans, industrial use and re-use of
water, wetlands, protection of aquatic resources, aboriginal water rights, economic
instruments, water as a human right, watershed approaches, and inter-jurisdictional or
international issues.
LAW 585 Alberta Court of Appeal Moots
The development of appellate advocacy and other lawyering skills in the context of
preparation for and participation in the Alberta Court of Appeal Moot, in the areas of
criminal law; civil law (contract, property or tort law); and constitutional law.
Prerequisite(s): Consent of the Faculty
LAW 587 Kawaskimhon National Aboriginal Moot
The development of advocacy, consensus building, and other lawyering skills in the
context of a non-competitive moot conducted in a circle arrangement and using a moot
problem based on contemporary issues in Aboriginal-Government relations. Includes a
writing requirement.
Prerequisite(s): Consent of the Faculty
LAW 589 Labour Arbitration Moot
The development of advocacy and other lawyering skills in the context of preparation for
and participation in an arbitration conducted under a collective agreement. Includes a
writing requirement.
Prerequisite(s): Consent of the Faculty
23
LAW 591 Provincial Court Clerkships
Placements in the Provincial Court performing research, preparing memoranda, and
meeting and discussing with a supervising Judge.
Prerequisite(s): Consent of the Faculty
Note: This course is Graded CR, D or F
LAW 593 Health Law
The regulation, structure, and financing of the health care system. Topics include
licensing and regulation of health care professionals (including medical malpractice
claims as a form of regulation); regulation of biomedical research; approval processes
for drugs; complementary therapies and medical devices; resource allocation and
access to health care; market considerations; privatization and deregulation of health
care; and consent and confidentiality.
LAW 594 Aboriginal Law
The law governing the relationship between indigenous peoples and settler society.
Topics include recognition of aboriginal laws and custom, self-determination and other
applicable principles of international law, self-government, common law recognition of
aboriginal title, treaties, the fiduciary duty of the Crown, constitutional entrenchment of
aboriginal and treaty rights, application of provincial laws, the Indian Act, land
surrenders, and exemptions from seizure and taxation.
LAW 595 Canadian Legal History
Migration of European law in the colonial context and its impact in pre-Confederation
Canada (settled and conquered colonies); the role of trading companies, particularly the
Hudson‘s Bay Company; the impact of the United States both before and after
Confederation; Confederation and the development of Canadian legal culture and law.
Jurisdictions may include British Columbia, Alberta, Ontario, Quebec, and Nova Scotia.
24
LAW 596 Feminist Legal Theory
A critical inquiry into the nature and function of law from a variety of different
perspectives within feminist legal theory. Topics include the role of rights and of legal
discourse, and the possibilities and limitations of law as a strategy for social
transformation.
LAW 597 International Trade Law
The public law framework for international trade, with emphasis on the WTO and
NAFTA. Topics include national treatment, most favoured nation treatment, antidumping and countervail actions, and dispute resolution.
LAW 598 Trusts
The concept of the trust and its development in equity and its relationship to other legal
concepts. Topics include the various types of trusts; constituting, administering and
terminating the trust; trustee duties and powers; variation of trusts; breach of trust; and
the doctrine of tracing.
LAW 601 Advanced Criminal Law
Examination of selected substantive areas of criminal law. Topics may include double
jeopardy, police entrapment, conspiracy, corporate crime, theft, impaired driving and
breathalyzer offences, plea negotiations, ethical issues, mistake of law as a defence,
and juveniles and the criminal process.
Prerequisite or Corequisite: Criminal Process
LAW 605 Oil and Gas Contracts
Selected problems in oil and gas law, including industry contracts (pooling, farmout,
joint operating, purchase and sale and royalty agreements); fiduciary duties; and title
review.
Prerequisite or Corequisite: Oil and Gas Law
25
LAW 612 Advanced Private Law
Advanced issues in private law (property, contract, tort, unjust enrichment and equity),
including contemporary controversies over appropriate rights and remedies when
different causes of action either converge or intersect.
Prerequisites or Corequisites: Contracts, Torts, Unjust Enrichment
LAW 613 Conflict of Laws
The doctrines and rules governing legal disputes cutting across provincial or national
boundaries. Topics include jurisdiction, distinctions between substantive and procedural
rules, the recognition and enforcement of foreign judgments, domicile, proof of foreign
law, and the choice of law rules relating to private law (torts, contracts, property,
succession and family law).
LAW 615 Advanced Civil Procedure
The strategic use of the Alberta Rules of Court in civil proceedings with reference to
related legislation and ethical requirements. Topics include commencement of
proceedings, interlocutory and ex parte applications, discovery of persons and records,
trial preparation, and the roles of the court.
Prerequisite or Corequisite: Civil Procedure
LAW 617 Alternative Energy Law: Renewable Energy and Energy Efficiency
The renewable energy and energy efficiency sectors. Topics include federalism, wind,
small hydro, solar, biomass etc, energy conservation and demand side management,
and access to energy infrastructure.
Prerequisite or Corequisite: Administrative Law
26
LAW 618 Corporate Finance Law
Legal aspects of corporate finance transactions, including applicable regulatory
frameworks. Topics may include equity and debt financing, secured transactions, asset
and/or share purchase and sale agreements, and takeover bids.
Prerequisite or Corequisite: Business Associations
LAW 619 Estate Planning
Personal dispositions of property, both inter vivos and on death, to achieve estate and
succession planning objectives. Topics include trusts, corporations, wills, life insurance,
buy-sell arrangements, income splitting, estate freezing, and tax deferral plans.
Prerequisites or Corequisites: Wills and Estates, Trusts, and Basic Tax Law
LAW 621 Corporate Governance and Litigation
The principal concepts in corporate governance and their evolution in Canada; the
Sarbanes-Oxley Act of 2002 and the related rules of the U. S. Securities and Exchange
Commission and the New York Stock Exchange; the securities regulatory response of
Canada to the adoption of Sarbanes-Oxley in the United States; and other current
topics in corporate governance.
Prerequisites or Corequisites: Business Associations, Civil Procedure
LAW 623 Environmental Impact Assessment Law
Environmental impact assessment (EIA) law and practice in Canada. Topics include the
role of EIA in the regulatory process and as a planning tool, federalism, triggers,
equivalency, harmonization, joint assessment, implementation of assessment decisions,
adaptive management, strategic environmental assessment, the role of traditional
knowledge, and public participation.
Prerequisite or Corequisite: Administrative Law
27
LAW 624 Environmental Law and Ethics
The ethical underpinning of environmental law, with a consideration of various views,
including the land ethic, deep and shallow ecology, instrumental and utilitarian
approaches, and inherent value.
LAW 625 Intellectual Property Transactions
Intellectual property transactions and strategies in a variety of industries in energy,
information technology, and life sciences. Topics include open source IP, IP
governance, management and best practices, valuation, ownership, improvements, coownership and collaboration, patent pools and standard setting organizations, software
licensing and IT transactions, licensing, infringement management, and warranties.
Prerequisite or Corequisite: Intellectual Property Law
LAW 626 International Development Law
The role of law in promoting social and economic growth, with a focus on the rule of law
as an instrument of development and the dialogue between the developed and less
developed worlds through international agreements. Topics include the rules of
international trade and finance, intellectual property, the environment and natural
resources, and the war on terrorism.
Prerequisite or Corequisite: Any one of International Law, International Trade Law, or
International Human Rights and Humanitarian Law
LAW 627 International Environmental Law
The customary and treaty law rules applicable to global and transboundary
environmental issues. Topics include air pollution, climate change, international wildlife
law and trade, the international chemicals agreements liability regimes, and shared
resources.
Prerequisite or Corequisite: International Law
28
LAW 628 International Investment Law
Investor protection in customary law and treaties, in particular NAFTA Chapter 11,
bilateral investment treaties (BITs), and the Energy Charter; the main disciplines,
including national treatment, most favoured nation treatment, fair and equitable
treatment, and the rules pertaining to expropriation; soft law norms pertaining to
investment; and relevant domestic law, including the Investment Canada Act.
Prerequisite or Corequisite: International Law or International Trade Law
LAW 630 International Petroleum Transactions
International business transactions in the context of the petroleum industry, including
the various forms of state agreements; confidentiality agreements; study and bidding
agreements; international joint operating agreements; agency agreements; and
participation agreements; with attention to the key legal, business and ethical issues
raised in negotiations.
LAW 631 International Tax Law
The tax implications of both inbound and outbound investment and implications for
structuring affiliates, with consideration of international tax treaties and foreign tax credit
mechanisms.
Prerequisite or Corequisite: Basic Tax Law
LAW 634 Law of Species and Spaces
The principal federal and provincial laws governing the management of biological
diversity, including protected area legislation and endangered species legislation.
Explores the constitutional and common law fundamentals of wildlife law as well as
contemporary disputes about species protection, ecosystem-level land management,
and game ranch operations.
Prerequisite or Corequisite: Administrative Law
29
LAW 636 Municipal Law
The legal position of local governments, including cities and regional governments.
Topics include the powers of Municipal Councils and Districts, the duties and
responsibilities of elected and appointed municipal officials, conflicts of interest,
elections, the regulation and licensing of businesses, proprietary and contractual
powers, tort and the public body, subdivision, land use planning, and the role of the
courts.
Prerequisite or Corequisite: Administrative Law
LAW 637 Energy Law
An overview of energy regulation, focusing on competition and pricing. Topics include
the theory and process of energy regulation, regulatory jurisdiction, judicial review of
energy regulation, regulation of natural gas and electricity prices, market restructuring,
and deregulation. The course will familiarize students with the legal issues that arise
when the legislature and regulators respond to market failures, and/or protect the public
interest, in the provision of natural gas and electricity services.
Prerequisite or Corequisite: Administrative Law
LAW 641 Oil and Gas and Mining Taxation
The resource regime rules of the Income Tax Act as applied to the oil and gas and
mining sectors. Topics include: operations subject to the resource regime; the treatment
of property costs and common industry expenditures (i.e. applicable "tax pools" and
their characteristics): resource industry "subsidies" (e.g. flow-through share financing,
investment tax credits); the avoidance provisions (e.g. the successor rules); and the
treatment of foreign operations of a Canadian resident taxpayer.
Prerequisite or Corequisite: Corporate Tax
LAW 645 Pollution Control and Waste Management Law
The provincial and federal pollution control regimes for air and water pollution and for
the handling, storage, treatment, and disposal of hazardous and non-hazardous wastes.
Topics include federalism; regulatory and non-regulatory approaches to pollution from
30
―point‖ and ―non-point‖ sources; cumulative pollutant loads; the ―precautionary‖ and
―polluter pays‖ principles; and liability for contaminated sites.
Prerequisites or Corequisites: Administrative Law and Environmental Law
LAW 647 Regulatory Theory and the Law
The main theories that explain or justify government regulation, including correction for
market failure, political economy or public choice, and deliberative democracy. The
relationship between those theories and the development and implementation of
regulatory legislation, regulation, and public policy.
Prerequisite or Corequisite: Administrative Law
LAW 648 Securities Law
The regulation of capital market participants; the issuance of, and trades in, securities of
companies, with an emphasis on Alberta and the National Instruments enacted by the
Canadian securities regulator; the theory of securities regulation; as well as
enforcement and compliance.
LAW 653 Directed Research, H, 3 credits
A supervised research project involving the in-depth examination of a legal problem or
area of concern not normally covered in a substantive or procedural course and which
provides the basis for an article, research paper, brief, memorial, draft legislation, etc.
Admission to this course depends on the availability of supervising faculty.
Prerequisite(s): Consent of the Faculty
MAY BE REPEATED FOR CREDIT
LAW 663 Dispute Resolution Clinical
Interest-based, consensus-building dispute resolution processes to enhance
understanding of dispute resolution theory, which will be applied through placements
31
drawing on the mentorship of lawyers and dispute resolution practitioners engaged in
court-annexed or private mediation, facilitation, collaborative law, and other processes.
Prerequisite or Corequisite: Dispute Resolution II
Note: This course is Graded CR, D or F
LAW 667 Advanced Public Law
Selected issues in constitutional law at the advanced level. Topics may include
constitutional amendment, comparative approaches to rights, comparative federalism,
the role of international law in constitutional interpretation, the legitimacy of judicial
review, evidentiary issues in constitutional litigation, the role of social movements, and
strategic litigation in securing constitutional rights.
Prerequisite: Constitutional Law
LAW 673 Jessup Moot
Preparation for and participation in the Philip C. Jessup International Law Moot Court
Competition. Prerequisite: Consent of the Faculty.
LAW 677 Canadian Corporate/Securities Law Moot
The development of appellate advocacy and other lawyering skills in the context of
corporate and securities law in Canada.
Prerequisite(s): Consent of the Faculty
LAW 678 The Gale Cup Moot
The development of appellate advocacy and other lawyering skills in the context of
preparation for and participation in the national Gale Cup Moot.
Prerequisite(s): Consent of the Faculty
32
LAW 683 Advanced Family Law
Selected topics in family law, including matrimonial property; division of pensions;
international family law; and the law relating to children, including regulatory aspects
(e.g. child welfare).
Prerequisite or Corequisite: Family Law
LAW 685 Business Clinical
The skills employed by a corporate solicitor in the context of one or more transactions.
Skills covered may include drafting, negotiating, research, advocacy, and transaction
management, in simulated or real transactions.
Prerequisite or Corequisite: Business Associations
Note: This course is Graded CR, D or F
LAW 687 Criminal Justice Clinical
A clinical seminar in elements of criminal law covering topical, practical, and ethical
issues in the practice of criminal law. Three short placements with Crown and defence
lawyers and a provincial court judge.
Prerequisite or Corequisite: Criminal Process
Note: This course is Graded CR, D or F
LAW 689 Family Law Clinical
A clinical seminar in elements of family law practice through simulated exercises,
supervised files, and/or placements. Topics include Chambers advocacy, marital
dispute consultations, and drafting of a settlement.
Prerequisite or Corequisite: Family Law
Note: This course is Graded CR, D or F
33
LAW 690 Western Canada MacIntyre Cup Trial Competition
The development of trial advocacy and other lawyering skills in the context of
preparation for and participation in the Western Canada Trial Competition. Credit for this
competition does not preclude credit for the Sopinka Cup.
Prerequisite(s): Consent of the Faculty
LAW 691 Natural Resources, Energy and Environmental Law Clinical
A clinical seminar involving placements in any one of the following practice areas:
energy law, resources law, water law, or environmental law.
Prerequisite or Corequisite: Any one of Environmental Law, Energy Law, Oil and Gas
Law, Water Law, or Public Lands and Natural Resources Law
Note: This course is Graded CR, D or F
LAW 692.xx Selected Topics I, H, 2 credits
A variety of subject areas, either doctrinal or theoretical.
MAY BE REPEATED FOR CREDIT
LAW 693.xx Selected Topics II, H, 3 credits
A variety of subject areas, either doctrinal or theoretical.
MAY BE REPEATED FOR CREDIT
LAW 694.xx Selected Topics III, H, 4 credits
A variety of subject areas, either doctrinal or theoretical.
MAY BE REPEATED FOR CREDIT
34
LAW 695 External Competitions, H, 3 credits
The development of advocacy and other lawyering skills in the context of preparation for
and participation in an external competition not otherwise the subject of a course. A
written component is generally required.
Prerequisite(s): Consent of the Faculty
LAW 696 Clinical Studies, H, 3 credits
Participation in a clinical experience not otherwise the subject of a clinical course
Prerequisite(s): Consent of the Faculty
Note: This course is Graded CR, D or F
LAW 697 Corporate Tax
The provisions of the Income Tax Act applicable to corporations and their shareholders.
Topics include the classification of corporations for tax purposes, the taxation of
corporate income, the taxation of corporate distributions, and the taxation of various
types of corporate reorganizations.
Prerequisite or Corequisite: Business Associations and Basic Tax Law
LAW 698 Immigration and Refugee Law
Basic principles, policies, and procedures governing immigration and refugee law.
Topics include refugee law and status; selection and admission of immigrants;
inadmissible and removable classes; exemptions and minister's permits; and appeals
and judicial review in the federal court, including Charter issues.
Prerequisite or Corequisite: Administrative Law
LAW 699 Labour Law
The law governing unionized workplaces in Canada. Topics include freedom of
association, the status of participants, union organization and certification, unfair labour
35
practices, collective bargaining, the collective agreement and arbitration, industrial
conflict, the duty of fair representation, and interaction between the labour law regime
and the common-law of employment.
Prerequisite or Corequisite: Administrative Law
As the first cohort of students into First Year at TRU Law School is planned to be in
September, 2011, initially the School will focus on the First Year curriculum and will
follow the University of Calgary curriculum.
As students move on to Second, and then Third, Year the Calgary curriculum will be
developed to accommodate them. Also, needless to say, at the outset – i.e. in 2012 and
2013 - the course offerings in Second and Third Year will not be as extensive as those
offered by Calgary, but will be expanded over time. The course offerings over the three
years will be more than adequate to ensure that students, upon graduation, will possess
the competencies required by the Final Report.
In particular, as indicated above, a course in Ethics and Professional Responsibility will
be a required course in Third Year and there will be significant components of Ethics
and Professional Responsibility in each of the First Year and Second Year curricula
both in the various mooting opportunities that will be available to students and through
other means of instruction and course offerings.
With this detailed curriculum in mind then TRU Law School will meet each and every
one of the following substantive law competency requirements – in the Foundations of
Law - as set out by the Final Report:
1. the principles of common law and equity, the process of statutory construction
and analysis and the administration of the law in Canada;
2. the constitutional law of Canada that frames the legal system, and,
3. the principles of criminal, contract, tort, property and Canadian administrative law
and legal and fiduciary principles in commercial relationships.
Referring to the curriculum to be adopted by TRU Law School, it will be seen that the
first of the above-three identified substantive law competencies will be met by every
student completing the compulsory First Year courses of Legal Perspectives,
Legislation, Administration and Policy and Fundamental Legal Skills. In addition, of
course, the compulsory First Year courses address foundational principles of common
law and equity. Further, the optional Third Year course of Trusts, in particular, entails
the study of a considerable amount of equity principles.
36
The second identified substantive law competency will be met by every student
completing the compulsory First Year course of Constitutional Law and the optional
Third Year course of Advanced Constitutional Law.
The third identified substantive law competency will be met by every student completing
the compulsory First Year courses of Crime: Law and Procedure, Contracts, Torts
and Property and the compulsory Second Year course of The Administrative Process
and by completing one or a range of the following optional Second Year courses:
Business Associations, Real Estate Transactions, Taxation Law and Policy, Wills
and Estates, Commercial Transactions II: Secured Transactions, Commercial
Transactions I: Sale of Goods, Intellectual Property, Debtor/Creditor Relations,
Restitution and Fiduciary Obligations and Insurance Law, and the following optional
Third Year courses of Estate Planning, Trusts, Advanced Business Transactions
and the Business Clinical Seminar.
Conclusion
The Law Degree Program at Thompson Rivers University is scheduled to enroll its initial
First Year law class in September, 2011. It has adopted the curriculum of the University
of Calgary Law School and will work closely with the Calgary Law School in the
development of student admissions, advancement and other matters, in the
development of its law library and in all issues which affect the development of the Law
School.
From the outset, the TRU Law School will be committed to teaching excellence, to the
establishment of a learning environment which combines experiential learning with the
highest quality comprehensive education, blending substantive knowledge with the
acquisition of skills necessary to effectively utilize this knowledge to practical effect. The
students at TRU Law School will graduate with a high quality, professional education
equipping them to practice law in all its manifestations. The Law School is also
committed to the highest level of legal research and scholarship and to playing a
significant role in the legal profession and in the community at large.
As the first new Law School in over 30 years, Thompson Rivers University Law School
is well-aware of its responsibility to the practice of law, to the legal profession, to legal
education and to the community at large. The commitment of Thompson Rivers
University, the legal profession in Kamloops, Interior British Columbia and beyond, the
37
community at large and the Law School, itself, all serve to ensure that the Law School
will be a success and will offer its students the very best in legal education, skills and
ethical values.
38
i
APPENDIX C-3
Thompson Rivers University
Correspondence
August 4, 2010
BY EMAIL
August 4, 2010
Chris Axworthy, Q.C.
Founding Dean of Law, Faculty of Law
Thompson Rivers University
900 McGill Road, PO Box 3010
Kamloops, BC V2C 5N3
RE :
Thompson Rivers University Proposal for a Faculty of Law
Dear Mr. Axworthy,
Thank you for the time you have taken to prepare your submission to the Ad Hoc
Committee on the Approval of New Canadian Law Degree Programs. The documents
have been very helpful in facilitating the work of the committee.
Your submission was circulated to the committee members for their review and
evaluation. The committee then spent July 26, 2010 at a meeting in Toronto to discuss
the proposal and compare it to the standards as laid out in the report of the Task Force
on the Canadian Common Law Degree.
After carefully considering all the material you provided, the committee has determined it
requires further information on the following points before it can complete its
deliberations:
-
-
A description of the ongoing relationship between the University of Calgary law
school and the Thompson Rivers University law school, including confirmation of
who will bear the responsibility for awarding the degree, and a copy of any
memorandum of understanding covering the arrangement.
The impact, if any, of the agreement with the University of Calgary law school on
British Columbian government approvals.
The plans, if any, for the delivery of courses at a distance (video,
correspondence, etc.).
As the relevant standards require us to consider resourcing issues for a new
school, we are requesting your planned budget both for the start up of the Law
school and for sustaining the program.
2
-
-
Information regarding relevant sources of funding for the law school.
An outline of your Library and IT plan, including budget, funding, hiring, and
acquisitions. (You may wish to comment with reference to the Canadian
Academic Law Library Standards.)
Hiring plans for faculty and staff, including timelines and funding
Plans, including budget and timelines, for the law school physical plant
While you have provided us with a copy of the University of Calgary law school
curriculum, we require greater clarity about the actual plans for Thompson Rivers
University law school curriculum including:
o More fulsome course descriptions for required courses.
o Details on the adaptation of the University of Calgary curriculum to the
British Columbia context.
o A description of how each student will meet the ‘legal and fiduciary
concepts in commercial relationships’ standard.
o A description of how each student will meet the oral and written
communications skills standard.
Please provide the abovementioned information by August 27, 2010. Once we receive
the information, the committee will finalize its deliberations.
If you have any questions, please do not hesitate to contact me or Deborah Wolfe.
Sincerely,
Ronald J. MacDonald, Q.C., Chair
Ad Hoc Committee on the Approval of New Canadian Law Degree Programs
c.c.
John Sparks, General Counsel
Thompson Rivers University
Mr. Al Lucas, Q.C., Dean of Law
University of Calgary
i
APPENDIX C-4
Thompson Rivers University
Supplementary Information
August 27, 2010
APPLICATION FOR THE APPROVAL OF THE
LAW DEGREE PROGRAM AT THOMPSON
RIVERS UNIVERSITY
SUPPLEMENTARY INFORMATION
August 27, 2010
1
Table of Contents
1. Ongoing Relationship with University of Calgary ……………………………………2
2. Impact of Agreement with University of Calgary on British Columbia
Governmental Approvals ………………………………………………………………..4
3. Distance Education ……………………………………………………………………….5
4. Resourcing Issues – Budget for Start-Up and for Continuing Operation
and Relevant Sources of Funding for the Law School ………………………………..5
5. Library and IT Plans ……………………………………………………………………..7
6. Hiring Plans for Faculty and Staff …………………………………………………….12
a. Faculty ……………………………………………………………………………….12
b. Staff …………………………………………………………………………………..16
7. Physical Plant Issues ……………………………………………………………………16
8. Curriculum Questions ………………………………………………………………….17
i)
Course Descriptions …………………………………………………………....17
ii)
Adaptation of the Calgary curriculum to the BC Context …………………17
iii)
Competency Requirement: Legal and Fiduciary Concepts
in Commercial Relationships …………………………………………………17
iv)
Competency Requirement: Oral and Written Communication Skills …...18
Appendices ………………………………………………………………………………21
Course Descriptions …………………………………………………………………….22
Pro Forma Law School Budget ……………………………………………………….241
Possibilities for the Third Floor Old Main ……………………………………..……242
Project Management Services for Old Main – Third Floor Addition …………… 248
APPLICATION FOR THE APPROVAL OF THE LAW DEGREE
PROGRAM AT THOMPSON RIVERS UNIVERSITY
SUPPLEMENTARY INFORMATION
1.
Ongoing Relationship with University of Calgary
The nature of the ongoing relationship between Thompson Rivers University and the
University of Calgary is contained in the Licence Agreement dated February1, 2010.
A copy of this Agreement articulating the terms and conditions under which the two
Universities undertake to co-operate in the establishment of a new Law School at
Thompson Rivers University (TRU) is attached. The Agreement contains a number of
matters to which the attention of the Ad Hoc Committee should be drawn.
By sections 2 to 4, the Agreement licenses the University of Calgary Law School (U of
C) Curriculum (including course descriptions, course outlines and course syllabi) and
Program (including faculty regulations, program objectives, standards of competence,
course requirements and the curriculum) to TRU. This constitutes a licence to TRU to
reproduce and use the U of C curriculum and program. Ownership of the curriculum and
program remain with the U of C. Modification of the curriculum and program by TRU
shall only be modified with “prior written consent of the Provost of U of C”.
In the Agreement, TRU undertakes to operate the new Law School in accordance with
the regulations of the U of C Law School, including those relating to grading standards,
academic status, assignments, examinations, appeals of grades, petitions to the
academic status committee, and delegation (section 10). By section 11, the Agreement
entitles TRU Law School to annotate its academic transcripts with the words “J.D.
offered in collaboration with the University of Calgary, Faculty of Law”. Consequently, in
the event that there is concern about the quality of content, quality and delivery of the
TRU Law Program, there is a significant element of quality control by the University of
Calgary and its Law School. There is a mutual interest on the part of U of C and TRU in
ensuring the Law Program at TRU has the “seal of approval” from U of C. Essentially, to
2
the extent that the U of C Law Program meets or exceeds the expectations of the legal
community in Canada, the TRU Law Program will do likewise.
It can also be seen from Section 12 that the extent of assistance offered by the U of C
Law School to TRU Law School is significant. In particular, it includes faculty members
at both Law Schools working together for the best interests of TRU Law School and of
its Law Program.
This co-operation between the two Law Schools envisages paying particular attention to
the quality of the TRU Law Program in the context of maintaining the reputation of the U
of C Law School. The oversight role of the U of C Law School, flowing from the licensing
of its curriculum and program by TRU, will serve as an additional incentive to that held
by TRU Law School - to build the best possible Law School and to ensure a highly
regarded Law Program at TRU. For example, section 15 establishes that TRU Law
School will deliver its Law Program in a manner consistent with the standards of
academic quality pursued at U of C Law School. In other words, academic standards at
TRU Law School will be the same as those pertaining at U of C Law School. The same
academic regulations will be pursued at both Law Schools and they will be those in
operation at the U of C Law School.
Therefore, quality control has from the beginning, and continues, to be a hallmark of
TRU’s Law Program .
Of course, a Law School depends primarily on the calibre of its faculty and students. In
terms of the selection of high calibre faculty to TRU Law School, the Agreement makes
a number of valuable contributions. Section 17 dealing with the selection of the
Founding Dean of the Faculty of Law at TRU has already been implemented. Two
members of the Faculty of Law at the University of Calgary Law School – Dean Al
Lucas and Professor Greg Hagen – were members of the 9 person selection committee.
Section 1 8 o f t he A greement pr ovides f or t he ongoing participation o f U of C Law
School faculty in the selection of the initial faculty at TRU Law School. It provides that
the Dean of the Law School at U of C may appoint up to two U of C faculty members to
the selection committee charged with selecting the initial faculty at TRU. The selection
of faculty members at Canadian Law Schools is a collective process encompassing the
advice of, at least a number of current faculty members, of whom the newly appointed
faculty m embers will b ecome colleagues. The bu ilding of a gr oup of qua lified an d
committed faculty m embers i s a p articularly i mportant part of t he es tablishment an d
development of a new Law S chool. With no faculty m embers in place at the outset at
3
TRU Law School this co-operation of U of C Law School colleagues will be par ticularly
important and valuable.
In addition, a number of U of C Law School students, with a connection to TRU, have
indicated a willingness t o p articipate as s tudent members o f committees at TRU. This
will be especially useful in the initial faculty selection process.
The Agreement addr esses participation o f U o f C Law S chool faculty m embers i n t he
continuing operation of TRU Law School by providing for the appointment of two U of C
Law S chool f aculty m embers as v oting m embers o f t he TRU F aculty of Law F aculty
Council. Again, this will prove useful during the early years of the development of TRU
Law School.
A further el ement ens uring t he q uality of TRU Law S chool, flowing f rom t his l icensing
agreement, is the provision of an ov ersight role for the U of C should that be d eemed
necessary by the Provost of U of C. Section 20 pr ovides for an i nspection of TRU Law
Program, if required by the U of C Provost, and for the co-operation of TRU in any such
process.
As can be seen from sections 26-41 of the Agreement, there are significant provisions
dealing with its enforcement and the resolution of any differences that may occur in
regard to its provisions.
Thus, it can be seen that the Agreement between the University of Calgary and
Thompson Rivers University is designed to ensure, and provides for, co-operation
between the two Universities, and their respective Faculties of Law, to start and operate
a high calibre Law Program at TRU. It provides for the support of U of C and its Law
School in the development of curriculum, academic standards and academic processes
and regulations at TRU Law School. It also provides for the support of U of C and its
Law School in the selection of qualified faculty members and in the continued operation
of TRU Law School.
In terms of the Ad Hoc Committee’s query about the source of the JD degree offered by
TRU, it can be seen from section 11 of the Agreement, that the responsibility is TRU’s.
However, should TRU decide to do so, it may add to the transcripts of graduating
students a notation stating that the degree is “offered in collaboration with the University
of Calgary, Faculty of Law”.
2.
Impact of Agreement with University of Calgary on British
Columbia Governmental Approvals
4
The February 16, 2009 Throne Speech in British Columbia indicated that, "A new law
school will be opened at Thompson Rivers University in Kamloops in collaboration with
the University of Calgary". Consequently, at the highest policy level of the British
Columbia government, the establishment of the new Law School at TRU is endorsed,
as is the collaboration with the University of Calgary Law School in this process
As with all universities in British Columbia, Thompson Rivers University is required
under section 48(2) of the University Act, RSBC, 1996, c.468, as am., to obtain the
approval of the Minister of Advanced Education and Labour Market Development before
instituting a new degree program. In order to assist the Minister in approving new
programs the Government established the Degree Quality Assessment Board (DQAB).
As it does with every new degree program, TRU is in the process of seeking approval of
its Law Program from DQAB.
The agreement with the University of Calgary Law School would not appear to have a
positive impact in securing this approval. The detailed Law Program presented to
DQAB, for its approval, will consist of the University of Calgary Law School curriculum
and program, including detailed course outlines, descriptions, academic requirements,
syllabi and academic criteria with the necessary changes to reflect the BC context.
Thus, the U of C Law School curriculum and program will be tailored to the needs of
BC. Indeed, while the Law Program at TRU will be based upon the U of C Law School
Program, it will truly be a British Columbia Law School Program.
It is anticipated that the TRU Law Program (including its collaboration with the
University of Calgary Law School) will be judged, by DQAB, on its merits. The
statements in the 2009 Throne Speech indicate the approval in principle of the
collaboration with the U of C by the Government of British Columbia.
3.
Distance Education
There are no plans to offer the TRU Law Program other than through in-person
instruction.
4.
Resourcing Issues – Budget for Start-Up and for Continuing
Operation and Relevant Sources of Funding for the Law School
TRU understands the Ad Hoc Committee’s interest in ensuring that the Law Program is
adequately funded. The 2010 financial statement of TRU can be found at
5
These financial statements show the consistently, healthy financial situation of
Thompson Rivers University. TRU has committed to, and possesses the financial
resources, the sources of funds and the track record to establish, develop and sustain a
well-funded, high quality Law Program.
Attached, as an Appendix for your information, is a budgetary projection for the first few
years of the new Law School. In addition, the Board of Governors of TRU allocated
$600,000 for start-up funds to cover the period of time prior to September 2011, when it
is planned that the initial cohort of first year students will enter the Law School.
The Committee can be assured that the University’s objective in establishing the Law
Program at TRU is to build a first rate Law School and that it will ensure that sufficient
funds are available to do so. The University is aware that adequately funding the Law
School requires (as it does with all Canadian law schools), and is committed to, a multifacetted approach. Funding will come from tuition fees, the Law Foundation of British
Columbia, private donations and university finances.
The Law School was established with a view to it operating, over the long term, on a
cost recovery basis. In the initial years, TRU will invest significant amounts into the new
Law School. Funding for the Law School’s continuing operation will come from the usual
sources, as indicated. The University is in the process of deciding on the appropriate
level of student fees.
The Ad Hoc Committee will be aware of the range of student tuition fees at Canadian
law schools. The most complete and up-to-date detailed information about Canadian
law schools is probably found on the Law School Admissions Council webpage. It
reports 2009 Tuition Fees, by Law School, as follows:
University of Alberta - $11,000
University of British Columbia – $9,937
University of Calgary - $12,500
Dalhousie University - $12,515
University of Manitoba - $9,200
McGill University - $7,158
University of New Brunswick - $9,032
Osgoode Hall Law School, York University - $16, 325
University of Ottawa - $11,564
Queen’s University - $12,195
University of Saskatchewan - $8,042
University of Toronto - $21,767
6
University of Victoria - $8,177
University of Western Ontario - $14,326
University of Windsor - $12,462
Again, as the Ad Hoc Committee will know, many university tuition fee schedules are
subject to provincial government imposed freezes or fixed and modest increases, and
all tuition fee schedules are under upward pressure. Consequently, practically all of
them can be expected to rise in the future, and almost all Canadian law schools are
under significant financial pressures (only some of which can be alleviated by tuition fee
increases).
Taking these 2009 fee schedules and adding modest annual increases would provide
an average Canadian law school 2011 law school tuition fee of around $14,000. This is
without any extra tuition fee increases and/or fees to account for the increased cost of
delivering high quality legal education in the 21st century. TRU recognizes this level of
student tuition fees at other Canadian law schools and will establish its tuition fees in
light of the rates elsewhere. As indicated, tuition fees will comprise only a part of the
total financial resources available to the Law School.
The University has established a Law School Advisory Committee, in part, to be
responsible for fundraising for the new Law School. The University’s Advancement
Office is also engaged in this effort. The Advancement Office has been successful in
raising funds for new buildings and programs at TRU. It is expected that, in conjunction
with the Law School itself and the Legal Profession, the University will be equally
successful in fundraising for the new Law School.
As was indicated in the University’s original letter to the Ad Hoc Committee, and as is
shown by its publicly available financial records, TRU is in a very healthy financial
position. TRU has the sole responsibility of ensuring the financial viability of the
University and of its academic and other programs. Its track record speaks for itself.
5.
Library and IT Plans
TRU agrees with the assertion of the Final Report of the Task Force on the Canadian
Common Law Degree that a “law school must maintain a law library in electronic and/or
paper form that provides services and collections sufficient in quality and quantity to
permit it to foster and attain its teaching, learning and research objectives”. Indeed, it is
impossible to comprehend a Law School without a Law Library as one of its key
elements. An effective and comprehensive Law Library will contain a mix of electronic
and paper collections. As ever more written material is available in digital form, the
appropriate mix between written and digital materials is constantly changing.
7
More material available in digital form would, it seems, necessitate a smaller paper
collection or, at least a proportionately smaller paper collection over time. Some
material is, and will, only be available in written form. Where that material is required for
the teaching, learning and research needs of TRU Law School it will be acquired and
added to constantly. One thing is clear, however, into the foreseeable future, there will
be a significant quantity of written material in all law school libraries. It is equally
predictable that more material will be available digitally in future years.
As TRU’s Law Library will be the first greenfield Canadian facility of its type in the digital
age, great care will need to, and will, be taken to ensure that appropriate directions are
pursued and the appropriate mix achieved. The Law Foundation of British Columbia has
provided the Law School with a development grant to assist in consulting with
recognized experts to obtain the best advice possible in this regard. In conjunction with
the TRU Library Director, the Law School is hiring a consultant to advise on the most
desirable initial, and continuing, organization of the Law Library including its acquisitions
policy. It would seem precipitous to act prior to the consultant’s report which will be
available in the near future.
In considering the best possible course of action, the Law School (and its consultant)
will pay close attention to the May 5, 2007 Canadian Academic Law Library Standards
(Standards) promulgated by the Canadian Academic Law Library Directors Association .
After all, Academic Law Librarians, with many years of experience in developing and
operating academic law libraries, possess significant knowledge of what it takes to
maintain an effective academic law library. However, few would have much, if any,
recent experience, in developing an academic law library from its inception.
That being said, TRU agrees with, and is committed to, the view expressed by the
academic law librarians that:
a)
b)
c)
An academic law library shall be an active and responsive force in the
educational life of the law school. A law library’s effective support of the
school’s teaching, scholarship, research and service programs requires a
direct, continuing and informed relationship with the faculty, students and
administration of the law school;
A law library shall have sufficient financial resources to support the law
school’s teaching, scholarship, research and service programs, and,
A law library shall keep abreast of technology and adopt it when
appropriate.
8
TRU is also committed to the Law Library administration model set out by the Standards
that:
a)
b)
c)
d)
An academic law library shall have sufficient administrative autonomy to
direct its development of the law library and to control the use of its
resources;
The director of the law library, in consultation with the Faculty of Law and
University Librarian, as appropriate, shall determine law library policy;
The director of the law library is responsible for the selection and retention
of personnel; the provision of law library services; and, collection
development and maintenance, and,
The budget for the law library may be determined as a part of the law
school budget or, according to institutional policy, allocated under the
university library budget, but is should be administered by the law library
director.
TRU is also committed to the appointment of a designated director of the law library and
to the hiring of sufficient, competent staff to carry out the important work of the Law
Library, both as proposed by the Standards. Likewise, it is committed to ensuring that
the services identified by the Standards are delivered effectively and efficiently.
The Standards make the following recommendations about the core collection of an
academic law library:
a)
“The core collection of a Canadian academic law library shall consist of
the following:
i)
all reported Supreme Court of Canada and Federal Court decisions
as well as the reported decisions of the appellate court of each
province and territory;
ii)
all federal, provincial and territorial statute revisions and annual
volumes;
iii)
all federal, provincial and territorial regulations;
iv)
all international treaties to which the government of Canada is
signatory;
v)
those federal and provincial administrative decisions appropriate to
the teaching, scholarly and research needs of the University
community;
vi)
the legislative materials (Hansard, debates, bills) of the Parliament
of Canada and of the province in which the law school is located;
vii) significant secondary works (journals, treatises, texts and
9
viii)
monographs) necessary to support the programs of the law school
and the University community; and
those citators, periodical indexes, bibliographies and encyclopedias
necessary to identify primary and secondary legal information
sources and to update primary legal information sources.
b)
In addition to the core collection of essential materials, a law library shall
also provide a collection that through ownership or reliable access:
i) meets the research needs of the law school’s students, satisfies the
demands of the law school curriculum, and facilitates the education
of its students;
ii) contributes to the teaching, scholarship, research and service
interests of the faculty;
iii) serves the law school’s special teaching, scholarship, research and
service objectives; and
iv) meets the University community’s needs for interdisciplinary lawrelated materials.
c)
A law library shall formulate and periodically update a written plan for the
development of the collection.
d)
All materials necessary to support the programs of a law school shall be
complete and current and in sufficient quantity or with sufficient access to
meet faculty and student needs. The law library shall ensure continuing
access to all information necessary to the law school’s programs.
i) In order to support and encourage the instruction and research of
students and faculty, the law library shall facilitate access to a wide
array of materials including central collections, databases, jointly
held special collections, interdisciplinary materials and other types
of off-site auxiliary resources.
ii) Agreements for sharing information resources, except for the core
collection, satisfy the Collection standard if:
a) The agreements are in writing; and,
b) The agreements provide faculty and students with the ease of
access and availability necessary to support the programs of
the law school.”
TRU is committed to ensuring that these materials will be available to students, faculty,
the legal profession and the academic community at large. The consultant being
retained to provide advice with regard to the new library will assess the extent to which
10
resources from the large, nearby Kamloops Courthouse Library can be used as a
supplemental resource. The Standards point out that the “appropriate mixture of formats
[will] depend on the needs of the library and its clientele.” Needless to say, the network
of academic law libraries in British Columbia and Alberta will provide access, as and
when necessary, to difficult-to-obtain written materials found in their collections.
Plans are in place for the physical premises to be occupied by the Law School. This
custom designed space will include a designated Law Library as part of the main multisite University Library. Initially, the Law School will be situated in the House of Learning,
a new building on campus scheduled, and on time, to be occupied in January 2011 –
well ahead of the Law School starting date of September 2011. The House of Learning
will contain part of the University Library, including the Law Library until the new
dedicated Law School is built. Once the new Law School building – to be comprised of a
third floor addition to what will be a completely renovated and remodeled building, called
the Old Main Building – is completed the Law School will occupy that space (see
attached project construction schedule for completing the shell exterior for the Old Main
Third Floor addition). This addition will be designed specifically to accommodate the
Law School and built with the full participation of the Law School. The Law School and
the Law Library will command a stunning view of Kamloops, the river valley, the hills
and the mountains which comprise the spectacular scenery of the area. It will have the
most up-to-date and modern classroom, learning, research, studying and practical skills
facilities available anywhere, including state-of-the-art moot court space.
Specifically, the Law Library physical facilities will meet, indeed exceed, all of the
Standards for such facilities proposed by the Academic Law Librarians in the following
terms:
a) The physical facilities for the law library shall be sufficient in size, location and
design in relation to the law school’s programs and enrollment to
accommodate law school students and faculty, and the law library’s services,
collections, staff, operations and equipment.
b) The law library shall provide a variety of work spaces to accommodate quiet
study, research, collaborative learning and access to technology
c) The law library must provide suitable space and adequate equipment to
access and use all information in whatever formats are represented in the
collection. Such equipment may include:
i) Microform reader(s)/printer(s);
ii) Computer hardware and software (including infrastructure support and
services) in sufficient quantity and of acceptable currency to support
the teaching and research programs of law students and faculty; and,
iii) Audio-visual equipment relevant to the formats in the collection.
11
As part of its vision for the new Law School, TRU is committed, to establish and develop
a law library for the 21st century which will meet the needs of its users and be a central
part of the Law School mission. It has committed the resources necessary to do so.
It may be that the Ad Hoc Committee would prefer more details and specifics regarding
the Law Library than can, at present, be provided by TRU. There are two important
points to be made in this regard. The first is that, as previously mentioned and as the
Committee members know, establishing and developing the first greenfield academic
Law Library in Canada in over 30 years presents an important challenge in terms of the
appropriate mix of digital and written materials. Reference can and will, be made to
current developments in the United States, where a number of new law schools and law
libraries have been established recently. With the decision to work with consultants to
assist in planning the Law Library, supported financially by the Law Foundation of
British Columbia, it is surely prudent to obtain and assess the advice obtained through
this process before moving forward precipitously. Of necessity, this consultation and
assessment process will take place in the next short while. The establishment and
development of the Law Library, its physical facilities and its collection can then move
forward in an informed and deliberate way with confidence that the Library will meet the
needs of its many users. All of this is on a tight timeline, of course. The Law Library will
be in place and functioning effectively as an “active and responsive force in the
educational life of the law school” providing “effective support of the school’s teaching,
scholarship, research and service programs” in a “direct, continuing and informed
relationship with the faculty, students and administration of the law school.” This will be
achieved in time for the Law School to open in September 2011. As this process
progresses, TRU commits to ensuring the Ad Hoc Committee is apprised of
developments and to addressing any questions the Committee might have.
6. Hiring Plans for Faculty and Staff
a) Faculty
In the coming months it is imperative that the TRU Law School focus on hiring the
appropriate number of faculty members with the ability to teach courses comprised by
the first year curriculum. As will be well-known to the Committee, it is unusual for faculty
at Canadian Law Schools to teach more than one first year course. However, it may be
that some professors who teach first year substantive courses will also teach all or part
of, what might be seen as, perspective or skills-based first year courses. In the
University of Calgary Law School curriculum, which has been adopted by TRU Law
School, these courses are: LAW 401Legal Perspectives, LAW 403 Legislation,
Administration and Policy, LAW 405 Fundamental Legal Skills and LAW 411 Dispute
Resolution I: Interviewing and Counselling.
12
With this in mind, it will be necessary to hire a sufficient number of professors to teach
(again referring to the University of Calgary Law School course designations) LAW 400
Constitutional Law, LAW 402 Contracts, LAW 404 Property, LAW 406 Torts and LAW
410 Crime: Law and Procedure - 5 professors if the first year courses are to be offered
in one class. In addition, professors will be required to teach LAW 401Legal
Perspectives, LAW 403 Legislation, Administration and Policy, LAW 405 Fundamental
Legal Skills and LAW 411 Dispute Resolution I: Interviewing and Counselling.
When the University of Calgary Law School was established in 1976, with 60 students
in its initial first year class, it had 9 professors. It is common for first year law classes to
be relatively small – in the range of 30-40 students per class. With an incoming first year
class of 60 this necessitates two sections of each first year course, which in turn
necessitates hiring sufficient professors to cover these sections. It is preferable,
wherever possible, for first year Law School class sizes to be in the range of 30-40,
although it should be noted that many established law schools have larger first year
classes. The reasons for small class sizes in first year are clear. There are two primary
educational objectives for the substantive first year courses. Firstly, they set out to
provide students with a good substantive knowledge in those subjects. Secondly, and
this makes smaller first year class sizes desirable, they ensure that, at least, by the end
of the second semester students acquire the not-so-straightforward, but critically
important skill of “thinking like a lawyer”. While substance can successfully be taught in
larger classes, the skills aspect of thinking like a lawyer requires a much more intensive
environment, involving more interaction between professor and student and, amongst
students themselves. This also pertains to skills-oriented courses such as LAW 405
Fundamental Legal Skills and LAW 411 Dispute Resolution I: Interviewing and
Counselling. The desirability of small class sizes in first year and the commensurate
need for professors for those classes is clear and is recognized and accepted at TRU.
The hiring schedule for professors for the incoming class of 2011 is as follows:
i)
ii)
iii)
iv)
v)
vi)
vii)
viii)
Establishment of Appointments Committee – September, 2010;
Establishment of Appointment Guidelines – September, 2010;
Advertisement – September 2010;
Short List of Candidates and selection of those to interview – early
October 2010;
Interviewing Shortlisted Candidates – October and November, 2010;
Offers to Successful Candidates – late November and early December,
2010;
Negotiations with Successful Candidates from December 2010, and,
Announcements of founding Faculty – December, 2010 on.
13
It should be pointed out that the Law School has received over 20 expressions of
interest from potential faculty members prior to any advertising of positions having been
published. Those who have contacted the Law School about faculty positions include,
current Canadian professors at Canadian, US, UK, Australian and New Zealand law
schools, current graduate students seeking their first academic appointment and
practising lawyers. Uniformly, they are of a very high quality. Most would make
exceptionally good faculty members at any Canadian law school. New expressions of
interest from potential faculty members arrive every week.
The Law School at TRU is established to offer a top rate legal education with a focus in
a number of areas. Substantive areas of focus relate to the physical location of the Law
School – Natural Resources and Energy Law, Environment Law and Aboriginal Law. In
addition, from its inception, the Law School has been, and remains, committed to
addressing the needs of geographic regions of Canada that are underserviced by
lawyers and areas of law practice for which there is a high demand and identifiable
shortages of lawyers. As is well known, the Chief Justice of Canada has raised the
importance of addressing the issue of unrepresented litigants on a number of
occasions.
These substantive and practise-oriented areas of focus necessitate hiring professors,
both full-time and part-time, who are able to address them. TRU Law School’s approach
to faculty appointments will reflect these priorities from the outset. This will necessitate
having full-time and part-time professors on faculty who can effectively accommodate
the Law School’s teaching priorities. Needless to say, the Law School’s immediate
teaching priorities must be met first – this means focussing on the teaching of first year
courses. Of course, these faculty appointment decisions will made bearing in mind the
initial needs of the Law School in regard to its first year curriculum, although with an eye
to the Law School’s needs regarding teaching upper year courses.
As the Law School will receive its initial first year class in September, 2011, as is
indicated above, the hiring process is on the horizon. Reference has already been made
to the Law School‘s hiring schedule. Most of the Law School’s initial faculty will take up
their positions on July 1, 2011. It may be possible and desirable for one, or a number, of
these professors to commence their appointments earlier than on that date. Certainly,
by the end of 2010 the first cohort of faculty members at TRU Law School will have
been appointed or in the process of being appointed.
The basic parameters for the proposed number of professors have been set out above.
The exact number will, of course, depend upon the initial hires and what subject areas
they are qualified to teach.
14
Normally, Canadian Law Schools involve current faculty and (usually, students) in the
decisions about new faculty hiring. Needless to say, that will not be possible at TRU –
there are no current faculty or students. Graduates of TRU, who are law students at the
University of Calgary Law School, have offered to provide assistance in this regard. So
where law students would normally be involved in decision-making, TRU Law School
will have the benefit of the participation of these University of Calgary law students.
Similarly, as is provided in the Licence Agreement between TRU and U of C, TRU Law
School will benefit from the expertise of University of Calgary faculty members in the
hiring process. As previously mentioned, this collaboration occurred in the
recommendation to hire the Founding Dean of the Faculty of Law at TRU. In addition,
there are faculty members with law qualifications in other faculties and departments at
TRU who can be, and already have been, of great assistance. Further, the legal
profession in Kamloops have been most willing to assist the Law School to date. When
those with an interest in applying for faculty positions at TRU Law School have been in
Kamloops at the invitation of the Law School the Bar has been most helpful in informally
interviewing the potential applicant. As the appointments process moves into a formal
phase, this process will be formalized accordingly.
So the appointments process pursued at TRU Law School will be a rigorous, peerevaluated one approximating as closely as possible the process followed at established
law schools. The one exception will be the greater participation of practising lawyers, as
compared to the practice in established Canadian law schools.
It may be of interest for members of the Ad Hoc Committee to have a ready reference of
the numbers of full- and part-time faculty at the English language Canadian law schools
(as reported to LSAC, see above) and the number of full-time students at Canadian law
schools. These statistics are as follows:
University of Alberta – (515 Full-time students) – 34 Full-Time Faculty, 34 PartTime Faculty;
University of British Columbia – (557 Full-time students) – 52 Full-Time Faculty,
42 Part-Time Faculty;
University of Calgary - (294 Full-time students) – 18 Full-Time Faculty, 35 PartTime Faculty;
Dalhousie University - (501Full-time students) – 41 Full-Time Faculty, 50 PartTime Faculty;
University of Manitoba – (293 Full-time students) – 27 Full-Time Faculty, 67 PartTime Faculty;
McGill University - (633 Full-time students) – 43.5 Full-Time Faculty, 29 PartTime Faculty;
University of New Brunswick – (230 Full-time students) – 17 Full-Time Faculty,
15 Part-Time Faculty;
Osgoode Hall Law School, York University - (828 Full-time students) – 57 FullTime Faculty, 104 Part-Time Faculty;
15
University of Ottawa - (955 Full-time students) – 63 Full-Time Faculty, 120 PartTime Faculty;
Queen’s University - (468 Full-time students) – 31 Full-Time Faculty, 40 PartTime Faculty;
University of Saskatchewan - (300 Full-time students) – 27 Full-Time Faculty, 4
Part-Time Faculty;
University of Toronto – (600 Full-time students) – 64 Full-Time Faculty, 81 PartTime Faculty;
University of Victoria - (375 Full-time students) – 33 Full-Time Faculty, 34 PartTime Faculty;
University of Western Ontario - (501 Full-time students) – 44 Full-Time Faculty,
42 Part-Time Faculty, and,
University of Windsor - (601 Full-time students) – 32 Full-Time Faculty, 48 PartTime Faculty.
While there is a considerable variation in the numbers of full-time and part-time faculty
and in the number of full-time students in Canadian law schools there are some
interesting parameters. The smaller law schools (of which TRU will be one) with student
bodies (in the three years) in the 200-300 range have a faculty complement of
somewhat less than 20, supplemented by part-time professors, mostly drawn from the
practising bar. This is TRU’s expectation. As indicated, faculty recruitment will be
phased in over a three year period, with supplemental appointments as necessary.
b) Staff
TRU Law School has appointed a Manager of Administration, with considerable
experience most recently at the University of Victoria Faculty of Law. In due course, an
Admissions Officer, a Manager of Student Services and clerical staff will be appointed.
As the Law School develops and grows in size, assessments will be made about the
personnel needed to deliver the services required of a modern law school, and
decisions will be made accordingly.
7. Physical Plant Issues
As has been indicated previously, initially, the new Law School at TRU will occupy
offices and classroom space in the House of Learning. In addition, at the outset, the
Law Library will be situated in this building. This new building will be ready for
occupancy in January 2011. Plans are in place for the permanent “home” as a major
addition to what is now known as “Old Main”. Again, as has been indicated, this physical
space will house faculty, administration and student offices and work spaces, a moot
court room, lecture and seminar room facilities, the Law Library, etc. (Appendix: project
construction schedule for completing the shell exterior for the Old Main Third Floor
addition) The expected date of occupancy of the new premises for the new Law School
16
is 2013/14. It will be a state-of-the-art facility in every way possible. To reiterate; the
University’s financial commitment, financial capacity and track record in this project and
similar construction projects to date is unparalleled.
8. Curriculum Questions
i)
Course Descriptions
Attached are copies of detailed first year and upper year required course outlines from
the University of Calgary Law School for 2009-10. While updated versions will be
available shortly, as the new academic year commences, these course outlines
comprise the most comprehensive information currently available. Should the Ad Hoc
Committee require the course outlines for 2010-11, once they are available, they can be
provided. It will be seen that these detailed course outlines, which are distributed to
students at the beginning of the course, include detailed course descriptions, course
objectives and expectations, assignment schedules, course materials, required and
recommended readings and evaluation guidelines. Course outlines are provided for the
following first year courses (all of which are required courses): Constitutional Law, Legal
Perspectives, Contract Law, Legislation, Administration and Policy, Property,
Fundamental Legal Skills, Torts, Crime: Law and Procedure and Dispute Resolution
and the following upper year required courses: Administrative Law, Civil Procedure,
Evidence, Ethical Lawyering, Dispute Resolution II, Legal Research, and Advocacy: The
Art of Persuasion.
As TRU has licensed the U of C Law School curriculum, and program, these courses
and course descriptions, requirements and academic standards will be implemented at
TRU.
ii)
Adaptation of the Calgary Curriculum to the BC Context
As mentioned earlier, where necessary the course descriptions will be amended to take
account of statutory, regulatory and practice rules specific to BC. For example, where
the U of C Law School course description refers to an Alberta statute the BC equivalent
will replace it in TRU Law School’s course descriptions. This curriculum adaptation will
be carried out by the professors responsible for teaching the affected courses.
iii)
Competency Requirement : Legal and Fiduciary Concepts in
Commercial Relationships
Each student will meet this competency by studying one or more courses in subjects
where these concepts are covered in detail and then being successful in the evaluation
process in that course(s). While the vast majority of graduates of Canadian law schools
to date will have acquired this competency, as this requirement for entering the articling
17
process in the legal profession is new, each Canadian law school will be evaluating the
acquisition of this competency in the context of its curriculum and course offerings. They
will be advising students of the requirement and counseling students on the importance
of acquiring the required competency. TRU Law School will conduct this assessment in
conjunction with the U of C Law School. The Dean of Law at TRU will then provide a
clear indication of which law students will have graduated with this competency.
Courses such as Corporation Law, Commercial Law and Trusts are obvious courses
students should take to acquire this competency in legal and fiduciary concepts in
commercial relations if they want to enter articling en route to becoming a member of
the legal profession of a Canadian Province or Territory. TRU Law School will follow the
same practice as that followed by the U of C Law School.
iv)
Competency Requirement: Oral and Written Communications Skills
Law students who graduate from TRU Law School will have access to a wide array of
courses and experiences which will ensure they acquire the oral and written skills
demanded of practising lawyers. Lawyers require superior advocacy skills – both oral
and written. Indeed, a lawyer’s stock-in-trade is the power of persuasion. There will
occasions when this can be exhibited through oral communication and other occasions
when it will be appropriate to exhibit these skills in written form. The ability to
communicate orally and in writing, requires law students, graduates and practising
lawyers to possess superior research skills. After all, the substance of what is
communicated is a critically important component of conveying a message. Both
substantive content and communications skills are important in a persuasive argument.
The course entitled Fundamental Legal Skills, provides a significant amount of
instruction, exercises and assignments in an introduction to legal method, legal systems
and institutions, sources of law, legal analysis, including case analysis and problemsolving skills, court systems, precedent, stare decisis, legal writing and communication,
including the memorandum of law and factum, oral advocacy, including mooting,
research data bases and legal research skills. It includes the learning and application of
the various skills law students need to acquire. So, in this first year course, students will
be expected to acquire the basic lawyering skills they will need for the remainder of their
legal studies and for the performance of their roles as members of the legal profession –
the course assesses the following work of students:
1.
2.
3.
4.
5.
Analytical case brief assignment;
Memorandum of law assignment;
Moot assignment;
Legal research examination, and,
Legal research plan and critique.
18
Students will be required to successfully complete each assignment and receive a
passing grade in the examination. Students with unacceptable assignments and
examinations will be required to redo them and obtain passing grades.
Students at TRU Law School will acquire the high quality oral and written
communication skills they will need to function effectively as lawyers, in whatever
capacity they find themselves. They will learn to communicate clearly in English – the
language of instruction at TRU. They will be encouraged to be proficient in French,
where appropriate. Students will learn to identify the purpose of any proposed
communication, to use correct grammar, spelling and language suitable to the purpose
of the communication and for its intended audience, and to effectively formulate and
present well-reasoned and accurate legal argument, analysis, advice and submissions.
Of course, this is just the beginning.
From the very outset of the law student’s career at TRU, the Law School will focus on
the basic skills of reading, briefing, analyzing and discussing cases – oral and written
competencies. As well as the particular skills-based approach in the course
Fundamental Legal Skills, the acquisition of these skills will form part of each of the
substantive courses in first year. This is constituted by a series of student assignments
and responsibilities, together with assessment and feedback from respective
professors. Opportunities for remedial and extra instruction in these important skills
would be available for those who, after a number of assignments and a number of
opportunities to participate in class discussion over a reasonable period of time, require
some extra attention.
These skills will be honed, and improved upon, in upper year courses and in the various
mooting and debating opportunities available to students, both inside the Law School
and in National and International competitions identified below, as well as throughout
the curriculum. The Program will ensure students throughout their Law School career
have the opportunity to participate in a range of mooting and related activities.
Upper year courses of particular relevance here include Advocacy: The Art of
Persuasion, Legal Research and Dispute Resolution I and II, which are contained in
Appendices.
It will be seen from the course description for Advocacy: The Art of Persuasion that a
wide range of oral and written competencies are addressed and assessed including:
developing a trial plan, running a civil trial, examination-in chief (with and without
introducing documents, exhibits and demonstrative evidence, using exhibits, cross
examination (with and without documents), impeachment, objections at trial,
19
professional and expert witnesses, re-examination, opening addresses, making
submissions, closing arguments.
The Legal Research course builds on the research skills developed in first year. It
provides instruction in research methodology, citation, print and electronic legal
resources, and covers both primary and secondary legal materials. As the course
description states: “The emphasis is on advanced legal research skills required for
successful legal practice“. The Dispute Resolution courses are skills-based and include
discussion and class participation – oral communication, written assignments and
simulated negotiations, as well as interviewing and counselling role-playing. Each of
these skills-based courses involves a significant consideration of ethical issues.
Students who are successful in the assessment process will be considered to have
obtained a competency in the skills and knowledge required in the particular courses in
question. So, it can be seen that there are many components to ensuring students
acquire the oral and written competencies they will need in order to be effective lawyers
in whatever field they find themselves.
20
APPENDICES
21
•
COURSES LISTED BY
UNIVERSITY OF
NUMBER
CALGARY
FACULTY OF LAW
_-.-•-
FIRST YEAR COURSES
Law 400
Law 401
Law 402
Law 403
Law 404
Law 405
Law 406
Law 410
Law 411
pneyiais. *
b9U8
b8i.bS
Law 607
Law 611
b6U3
bSt.2U
Contracts
Legislation, Administration and Policy
Property
*
Fundamental Legal Skills
Torts
/
Crime: La^w and Procedure
Dispute Resolution I: Interviewing and Counselling
UPPER-YEAR REQUIRED COURSES
Law 503
Law 505
Law 507
Law 510
Law 513
b6l.il
Constitutional Law
Legal Perspectives
Administrative Law
Civil Procedure
Evidence
Ethical Lawyering
Dispute Resolution II: Negotiation and Mediation
Legal Research
Dispute Resolution III: Adjudication
22
UNIVERSITY OF CALGARY
FACULTY OF LAW
LAW 400: CONSTITUTIONAL LAW
SECTIONS 01 & 02
COURSE OUTLINE, 2009-2010
INSTRUCTOR:
CLASSES:
Section: 01
Section: 02
Dean A. Lucas
Professor J. Koshan
MFH 4398
MFH 4311
Phone:220-7111
Phone: 220-7329
e-mail: alucas@ucalgary.ca
e-mail: koshan ©ucalgary.ca
Fall term: Tuesdays 9:00-10:15 a.m. and Fridays 9:30- 10:45 a.m.
Winter Term: Tuesdays and Thursdays 9:00 - 10:15 a.m.
Room 3370 (sec. 01) and 3360 (sec. 02)
COURSE DESCRIPTION:
This course deals with the basic principles and concepts of Canadian Constitutional Law. The fall
term deals primarily with federalism (the division of powers). Within federalism, specific topics
include constitutional powers of courts; principles of interpretation in the distribution and limitation of
legislative power; the judicial review process; distribution of legislative power between the federal
and provincial levels, including the federal peace, order and good government power, trade and
commerce, property and civil rights, and criminal law.
The topic of Aboriginal peoples and the constitution will bridge the fall and winter terms.
The winter term deals primarily with constitutional rights. Underthe Canadian Charter ofRights and
Freedoms, the topics covered include freedoms of religion and expression, fundamental justice
rights and equality rights. Other important topics include s. 1 reasonable limitations, government
action, standing, remedies, and the s. 33 override.
COURSE OBJECTIVES and EXPECTATIONS:
Canadian constitutional law is a large, complex and constantly changing subject. As itcannot be
comprehensive in scope, this course aims to provide a working knowledge of its subject matteras
stated in the course description for the purpose of analyzing and advising on legal problems
involving constitutional issues. Course objectives are:
•
•
development of intellectual skills in analyzing complex fact situations;
identification of the relevant issues arising from a given fact situation;
•
development and critical assessment of arguments based on constitutional text, history,
•
principles, precedents, policies, and philosophy;
the critical use of legal materials in giving reasoned advice and judgments.
1
23
Both the mid-term examination and the final examination test the ability to apply concepts and
principles to hypothetical fact problems.
This course will be taught through a combination of lectures, class discussion and problems. The
goal is to have an active and engaged class room environment. It is the instructors' expectation that
students will have read and thought about the assigned materials before they come to each class.
Each class will be taught on the assumption that students are prepared to discuss the assigned
materials.
MATERIALS:
•
The Constitutional Law Group, eds., Canadian Constitutional Law (Emond Montgomery,
2003) 3d edition. This is the required casebook for this course, and it is available at the
University Bookstore.
The other required materials are the ConstitutionAct 1867 and the Constitution Act 1982.
Both are posted on Blackboard. Please print these documents and bring them to class with
•
you, or, if you have a laptop, you may access them during class using the university's
wireless internet system.
Supplementary Materials (prepared by the Constitutional Law Group) will be posted on
Blackboard, as will Handouts.
P.W. Hogg, Constitutional Lawof Canada(2009 student edition), is the most recent textbook
on constitutional law. Its purchase is optional, and a copy will be placed on reserve.
EVALUATION:
Mid-term examination (December, 2009)
35% of the course grade
Final examination (April, 2010)
65% of the course grade
Examination dates are set out in the Faculty of Law's Examination Timetables.
Both examinations are open book, but you will not be permitted to bring librarymaterials or Hogg to
the exam in the interests of fairness.
The exams are NOT cumulative in their coverage with the exception of the section on Aboriginal
peoples and the constitution, which may be examined in both terms.
Each examination question will be given a grade using the University's eleven-band system:
A+
-
A
-
A-
-
4.3
4.0
3.7
B+
B
B-
•
3.3
3.0
-
2.7
C+
C
C-
-
-
2.3
D+
2.0
D
1.0
1.7
F
0.0
1.3
24
The numerical values of the grades will be given their appropriate percentage weight and, after
adding the totals, a final overall grade will be assigned according to the following scale:
A+ =
A
=
A- =
4.15-4.30
3.85-4.14
3.50-3.84
B+ =
B
=
B- =
3.15-3.49
2.85-3.14
2.50-2.84
C+
C
C-
=
=
=
2.15-2.49
1.85-2.14
1.50-1.84
D+
D
F
=
=
=
1.15-1.49
0.50-1.14
0.00 - 0.49
FEEDBACK:
•
Discussion of examinations in class andindividually, as well as through written comments.
•
Instructors are available after class and by arrangement.
25
LAW 400: CONSTITUTIONAL LAW SYLLABUS
Fall Term 2009
Dean A. Lucas & Professor J. Koshan
PART I: FEDERALISM
All references, unless otherwise noted, are to Constitutional Law Group, eds., Canadian Constitutional Law
(Emond Montgomery, 2003) 3d edition. "SM" refers to the Supplementary Materials prepared bythe Constitutional
Law Group. Please read the notes and questions after each case. Background readings are noted in [brackets],
and will not be discussed in class.
Casebook Pages
PART 1: INTRODUCTION TO CANADIAN CONSTITUTIONAL LAW
CHAPTER 1: INTRODUCTION
1.
2.
3.
4.
5.
6.
Introduction to Chapter 1
Constitution Act, 1867
Constitution Act, 1982
Reference re Secession of Quebec, [1998] 2 S.C.R. 217
British Columbia v. Imperial Tobacco, [2005] 2 S.C.R. 473
British Columbia (AG.) v. Christie, [2007] 1 S.C.R. 873
3-11
Handout
Handout
11-28
SM 1 - 5
... SM 6 - 8
CHAPTER 13: THE JUDICIARY
1.
2.
3.
4.
The Judicial Function (Chapter 13)
The Independence of the Judiciary
Note on the ProvincialJudges Reference, [1997] 3 S.C.R. 3
Notes
5.
Constitution Act, 1867, Part VII
469-474
503 - 504
504-507
SM58-59
Handout
CHAPTER 2: JUDICIAL REVIEW AND CONSTITUTIONAL INTERPRETATION
1.
Introduction to Chapter 2
2.
Reference re: Meaningof the Word "Persons" in Section 24 of the British North AmericaAct, 1867,
3.
4.
[1928] S.C.R. 276
Edwards v. A.G. Canada, [1930] A.C. 123
Triggering Judicial Review and Procedural Issues
29 - 36
37 - 40
41 -46
SM 9 -13
PART 2: FEDERALISM
CHAPTER 3: FROM CONTACT TO CONFEDERATION
[55-87]
CHAPTER 4: THE LATE NINETEETH CENTURY: THE CANADIAN COURTS UNDER THE INFLUENCE
1.
2.
Introduction to Chapter 4
Citizens Ins. Co. v. Parsons, (1881), 7 A.C.96
3.
Notes
89 - 90
90 - 97
113-117
CHAPTER 8: INTERPRETING THE DIVISION OF POWERS
1.
Introduction to Chapter 8
Validity/Pith and Substance
1.
R.v. Morgentaler, [1993] 3 S.C.R. 463
2Notes
197-213
213-224
SM21-22
26
Necessarily Incidental (Ancillary Powers) Doctrine
1.
Necessarily Incidental
2.
General Motors v. City National Leasing, [1989] 1 S.C.R. 641
3.
224 - 225
225-230
Notes
SM29
Double Aspect Doctrine
1.
Double Aspect Doctrine
2.
Multiple Access v. McCutcheon, [1982] 2 S.C.R. 161
3.
231 -232
232-237
Ryder, "The Demise and Rise of the Classical Paradigm..."
Paramountcy Doctrine
1.
Operability: The Paramountcy Doctrine
Ross v. Reg. of Motor Vehicles, [1975] 1 S.C.R. 5
2.
3.
Multiple Access v. McCutcheon, [1982] 2 S.C.R. 161
4.
Bank of Montreal v. Hall, [1990] 1 S.C.R. 121
5.
Rothmans, Benson &Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188
[237 - 239]
254 - 255
255 - 259
260 - 264
264-272
SM 37 - 41
Interjurisdictional Immunity Doctrine
1.
Applicability: The Interjurisdictional Immunity Doctrine
2.
McKay v. The Queen, [1965] S.C.R. 798
3.
239 - 242
242 - 246
Commission de la Sante et de la Securite du Travail v. Bell Canada (Bell #2),
[1988] 1 S.C.R. 749
246 - 254
Recent Developments
1.
Canadian Western Bank v. Alberta, 2007 S.C.C. 22
CHAPTER 9: PEACE, ORDER AND GOOD GOVERNMENT (POGG)
1.
Introduction to Chapter 9
Handout
273 - 281
Historical Approaches to POGG
1.
2.
3.
Russell v. The Queen (1882), 7A.C. 829
Hodge v. The Queen (1883), 9 A.C. 117
The Local Prohibition Reference, [1896] A.C. 348
Recent Developments
1.
Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373
2.
R. v. Crown Zellerbach Can. Ltd., [1988] 1 S.C.R. 401
3.
Friends of the Oldman RiverSociety v. Canada, [1992] 1 S.C.R. 3
4.
Notes
[97-100]
[101 - 106]
[107-113]
281 -302
303-318
318-322
SM42-47
CHAPTER 10: ECONOMIC REGULATION (TRADE AND COMMERCE)
Provincial Powers over Economic Regulation (Intra-Provincial Trade and Commerce)
1.
Carnation Co. v. Quebec Agricultural Marketing Bd, [1968] S.C.R. 238
2.
Note on AG. Manitoba v. Manitoba Egg &Poultry Assn., [1971] S.C.R. 689
3.
Note on Re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198
4.
Natural Resources
5.
Canadian Industrial Gas andOil Ltd. v. Sask., [1978] 2 S.C.R. 545
6.
Note on Section 92(A)
330-334
334 - 340
340-343
343-345
[345-350]
354 - 356
Federal Powers over Economic Regulation (Interprovincial and International Trade and Commerce)
1.
2.
The King v. Eastern Terminal Elevator Co. [1925] S.C.R. 434
The Queen v. Klassen (1960), 20 D.LR. (2d) 406 (Man.C.A.)
141 -146
357 - 361
3.
Note
4.
Caloil v. AG. Canada, [1971] S.C.R. 543
361 - 362
5.
Notes
362-365
SM48
27
General Trade and Commerce
1.
2.
3.
4-
Introduction
Note on Labatt Breweries of Can. Ltd. v. A.G. Can., [1980] 1 S.C.R. 91
General Motors of CanadaLtd. v. City National Leasing, [1989] 1 S.C.R. 641
Note
365-366
366 - 370
371 - 382
SM48
CHAPTER 11: CRIMINAL LAW
Federal Powers over Criminal Law
1.
Introduction
389-390
2.
3.
45.
Proprietary Articles Trade Assn. v. AG. Can., [1931] A.C. 310 (P.C.)
Reference Re s.5(a) of The Dairy Industry Act(Margarine Reference), [1949] S.C.R
Notes
RJR-MacDonald Inc. v. Canada(Attorney General), [1995]3 S.C.R. 199
155 -157
390 - 392
SM53
392 - 400
6.
78.
9-
R. v. Hydro-Quebec, [1997] 3 S.C.R. 213
Notes
Reference Re: Firearms Act(Can.), [2000] 1 S.C.R. 783
Notes
400-412
SM53-54
412-415
SM54-56
Provincial Power to Regulate Morality and Public Order
1.
Introduction
2.
3.
Re Nova Scotia Bd. ofCensors v. McNeil, [1978] 2 S.C.R. 662
Westendorp v. The Queen, [1983] 1 S.C.R. 43
4-
Notes
415-416
ZZZZ!!!!416 - 421
.Z!.421 -423
423- 426, SM 57
PART 3: ABORIGINAL PEOPLES
CHAPTER 14: ABORIGINAL PEOPLES AND THE CONSTITUTION
I.
Introduction
2.
r. v. sioui, [1990] 1s.c.r. 513
3.
4.
Chippewas of the Samia v. Canada
Excerpt, Royal Commission on Aboriginal Peoples
5.
6.
7.
8.
Guerin v. The Queen, [1984] 2 S.C.R. 335
Distribution of Legislative Authority
Delgamuukw v. British Columbia, [1997] 3S.C.R. 1010
Dick v. The Queen, [1985] 2 S.C.R. 309
9.
The Constitutional Entrenchment of Aboriginal Rights
10.
II.
12.
ft v. Sparrow, [1990] 1S.C.R. 1075
R.v. VanderPeet, [1996]2S.C.R. 507
ft v. Gladstone, [1996] 2 S.C.R. 723
]3' The
N°te"
-•
Duty to Consult
14.
15.
ft v. Rowley, [2003] 2S.C.R. 207
16.
Aboriginal Treaty Rights
18.
Governance
17.
19.
20-
ft v. Marshall, [1999] 3S.C.R. 456
ft v. Pamajewon, [1996] 2S.C.R. 821
Notes
511-513
ZZZZZZ.""."!!Z"""!Z"513 - 516
516-519
519 _ 524
"."..!!....."."...524 - 531
.....""....
607
ZZ..ZZZ..ZZ...607-611
ZZZZZ'.611-618
531
ZZZZZZZZZZ.
532-545
545-565
ZZZZZZZ 565-S72
ZZZZZI'sM
60-61
SM 65- 68
ZZZZZZZZZZZZZZZZZZZZZZZZZ. SM 69 - 74
591 .593
ZZZZZZZZZZZZZZZZZ.S93 - 607
618-619
ZZZZZZ.
619-622
-.ZZZZZZZZ!ZZ.".*622-630
28
LAW 400: CONSTITUTIONAL LAW
Dean A. Lucas & Professor J. Koshan
READING OUTLINE
Fall 2009
Federalism
Topic
Date
Page #s
September 15
Introduction, Constitution Acts
September 18
Quebec Secession Reference
September 22
Imperial Tobacco, Christie
September 25
The Judiciary
September 29
Judicial Review and Interpretation
October 2
[Chapter 3], Chapter 4 (Citizens v. Parsons)
CB 3-11, Handout
CB 11-28
SM 1-8
CB 469-474, 503-7, SM 58-59
CB 29-46, SM 9-13
[CB 55-87], CB 89-97, 113-117
October 6
Division of Powers / Pith and Substance
CB 197-224, SM 21-22
October 9, 13
Necessarily Incidental and Double Aspect Doctrines
CB 224-237, [237-239], SM 29
October 16
Paramountcy Doctrine
CB 254-272, SM 37-41
October 20
Interjurisdictional Immunity Doctrine
October 23
Canadian Western Bank v. Alberta
Handout
October 27
In Class Exercise
Handout
October 30
POGG
November 3, 6
POGG (continued)
November 10
Trade and Commerce: Provincial
CB 239-254
CB 273-302, [97-113]
CB 303-322, SM 42-47
CB 330-345, [345-350], 354-356
November 13
Reading Days - no class
November 17, 20
Trade and Commerce: Federal
CB 141-146, 357-382, SM48
November 24
Criminal Law: Federal
November 27
Criminal Law: Provincial
December 1
Aboriginal Peoples
December 4
Exam Review
CB 155-7, 389-415, SM 53-56
CB 415-426, SM 57
CB 511-531, 607-618
Handout
29
*
LAW 401: LEGAL PERSPECTIVES
WINTER TERM 2010
COURSE OUTLINE
Bryce Tingle
Office: Room 4304 (Fridays)
Shaun Fluker
Office: Room 4340
Phone: 410-6557
Phone: 220-4939
E-mail: tingle@tinglehome.com
E-mail: sfluker@ucalqarv.ca
Course Description:
This course is an introduction to a variety oftheoretical perspectives in law, including those of
natural law, legal positivism, liberalism, feminist legal theories and critical legal theories. The
various legal perspectives are applied to contemporary legal problems.
Course Objectives:
At the end of the course, students should be able to:
D
describe the various theoretical perspectives on law, legal and judicial reasoning and
rights introduced in the course Dthe main elements and strengths and weaknesses of
each and their positions on the nature and purpose of law, the correct approach to
statutory interpretation, the role of justice or morality in law and the role of the courts vis
a-vis the role of legislative bodies;
D
identify elements of these theoretical perspectives in judicial opinions and scholarly
articles;
D
apply the theoretical perspectives to a variety of fact situations in the context of judicial
interpretation; and
D
identify elements of these perspectives in their own thinking about the nature of law and
the roles and limits of the courts as legal institutions
Course Materials:
The Law 401: Legal Perspectives Course Materials will be on sale at the Student Union Copy
Centre, Bound & Copied.
30
Course Evaluation:
There are two compulsory evaluation components: an assignment and a final examination. The
assignment is worth thirty-five (35%) percent of your final grade in this course; the final exam is
worth sixty-five (65%) percent.
1) Assignment
The compulsory assignment will be handed out on Friday, January 15,2010. It is due by 11:55
a.m. on Monday, February 22,2010 at the Student Services Office on the second floor.
2) Final Examination
The compulsory final examination will be a two (2) hour, open book examination in this course at
9:00 a.m. on Friday, April 23,2010. The exam will require you to analyse, synthesize, evaluate
and apply the legal perspectives covered inthe course. All required readings and all class
discussion will be examinable.
Penalty for Missed Deadlines:
Failure to hand in the assignment by the specified deadline will result in a one grade reduction
(i.e., from a B to a B-) for each 24 hour period, or portion thereof, that the assignment is late.
Feedback:
Feedback will be in the form of written comments and/or sample answers for the assignment
and the examination.
Method of Arriving at Final Course Grades:
Each evaluation component will be graded using one of the following designations:
A+ (4.3)
A (4.0)
A- (3.7)
C+ (2.3)
C (2.0)
C- (1.7)
B+ (3.3)
B (3.0)
B- (2.7)
D+(1.3)
D (1.0)
F(0.0)
The individual grades for each component will be multiplied by the percentage which the
component bears to the whole, and the results will then be added to determine the final course
grade. Final grades will be assigned on the basis of the following grade point conversion scale:
A+(4.01-4.30) B+ (3.15-3.49)
A (3.85-4.00) B (2.85-3.14)
A- (3.50-3.84) B- (2.50-2.84)
C+(2.15-2.49)
C (1.85-2.14)
C- (1.50-1.84)
D+ (1.15-1.49)
D (0.50-1.14)
F (0.00-0.49)
The assigned grades may be adjusted bythe instructor in order to achieve the DBD median
grade required by Faculty Regulations.
31
UNIVERSITY OF
CALGARY
FACULTY OF LAW
LAW 401: LEGAL PERSPECTIVES
COURSE MATERIALS
WINTER 2010
Shaun Fluker
Bryce Tingle
™z:7;i?v™:sT^
?the usej °fstudents»«*
Un^uy ofC,gary P^s
tte Watson ^^^ <*
Jennifer Koshan and Shaun Fluker.
32
LAW 401: LEGAL PERSPECTIVES
WINTER 2010
COURSE MATERIALS
Syllabus and Tahte nfrnn^^
January 15 - Preface
Introduction to the Course and Materials
Reference Texts
3!"
ANote about Footnotes
How to Use the following Table and Article
v
v*
vi
vi
in
vii
R. Devlin, "Jurisprudencefor Judges" (2001) 27 Queen's L.J 161
January 22..............................
Social Contract Theories
Sauve v. Canada (ChiefElectoral Officer), [2002] 3S.C.R 519
,A
Questions for Discussion ..
14
,. ,
Moral Philosophy -Deontology and Utilitarianism...
17
Jeffrie G. Murphy and Jules L. Coleman,Philosophy ofw"rev"ed^^
Kant's Categorical Imperative
3."
Questions for Discussion ...
27
28
29
January29..........................................#mm
NaturalLaw Theory
Thomas Aquinas, Summa Theologica, Humani tow(Question 95)
31
36
^1 1969)"' "Ei8h' ^t0Fa" ,0^UW''in ^^'M^^'^M^V™^
y
36
Questions for Discussion
."3.3.'.*".""
44
Legal Positivism
DeniseMeyerson, Understanding Juri^^
Hart s Core and "Penumbra", in H.L.A. Hart, "Positivism and the Separation"o7u^
Harvard Law Review 593 at 606-08, 610,614-15, and 627-28
Questions for Discussion
5J>
' ( 8) 7i,
67
70
33
February 5
LegalRealism ~
&r°r! B°°kmark n01 definedQ-j
Natural'Law, LegalPositivism andLegal Realism Applied.
£2?£5&2l fe! °f^ The°ry °n Jud,'dal D™" W ™Chi -Ken, L. i^snlm
115
February 12
Su~ies and Examples ofH^
//oA/eW j Fundamental Legal ConceptsApplied
Questions for Discussion
-^0
130
February 26
Liberalism
r.,
—•••—.........
John Stuart Mill, On Liberty (1859)
134
Michael Sandel Liberalism and ,ts Critics (New York: New York Universiiy Pres, 19841 ill
\-i
Questions for Discussion ..
140
,.
145
Liberalism Applied: Equality Rights
Law v. Canada (Minister of Employment and Imm\:gration)7fl999Tl's'c'R*497
J
• • ••"'
Questions for Discussion ..
!f
150
167
March 5
Law & Economics.
-.nZucto^^
«a^^^^
Questionsfor Discussion ...
Law and EconomicsApplied...
Problems
169
16<>
(DiaSramS and ^Pfe ««« f<- JchnoToiiea,
181
189
191
191
Ji
34
March 12.........................................
.................................................................###............................. #>—......................................193
Feminist LegalTheories
Court, »Tkn?rr 17^ f ?fRlghtS: Rec°Sniti°n. Redistribution, and the Imperialism of the
Questions for Discussion
Feminist Legal Theories Applied
203
Questionsfor Discussion
208
Vancouver Rape ReliefSociety ^0^5^^
March 19.............................................
Postmodernism
roS"^
Questions for Discussion
228
235
Critical Legal Studies
Questions for Discussion ..
March 26
252
254
................
^
Postcolonialism.
4^l6-5J9C.l!!!& P°Stol0nial'^ ^ "^^
Questions for Discussion
AboriginalLegal Theory....
Questions for Discussion .
*
.255
26?
yift
289
309
iii
35
April 9
313
Critical Race Theory
"Race as Construct/' in Margaret Davies, Asking th7liwQuesUon:^
edition (Lawbook Co., 2002) 261-65
y'
m
2S^^^^IKtatodin8JuriSprudenCe: M^trod^iion to L^"S^"(0^rf7^rf Uni^^
Canri Aylward, Canadian Critical Race Theory: Racism and\he Uw (Hali^
P
Questions for Discussion
in
Zt'
Critical Race Theory Applied
R. v. R.D.S., [1997] 3S.C.R. 484 ZZZZZZZZZZZ!!!
Questions for Discussion
325
i™
IV
36
Contract Law 402.01
Faculty of Law, University of Calgary
Professor Girgis
2009-2010
Instructor
Professor J. Girgis
Room 4315
Telephone: 220-7251
Email: jgirgis@ucalgary.ca
Appointments
If you need to see me, please email me to set up an appointment.
Administrative Assistant
Shirl Roch
Room 4332
Telephone: 220-4011
Email: roch@ucalgary.ca
Office Hours: 8:30 a.m. - 4:30 p.m.
Synopsis and Course Objectives
The introductory seminar in "Contracts" is designed to impart the fundamental principles of Canadian
Contract Law, with particular emphasis on the formation, validity and termination of a contract. Instruction
will also be given on remedies for breach of contract. Throughout the course, attention will be paid to
general theories of contract. It is intended that students will develop an ability to apply the Contract Law
principles that they have learned to new problems and situations.
Class Times and Locations
FALL
WINTER
Tuesday 10:30-11:45 p.m. Room 3320
Thursday 10:30-11:45 p.m. Room 3320
Tuesday 10:30-11:45 p.m. Room 3320
Thursday 10:30-11:45 p.m. Room 3320
Materials - Contract
•
required casebook: Boyle &Percy Contracts: Casesand Commentaries (8th ed, 2009)
o
•
•
•
•
page references will be to the casebook
required supplement (on Blackboard): Rafferty, Contracts: Supplementary Materials (2009)
o page references will be to "S.M."
recommended text: McCamus The Law of Contract, Essentials ofCanadian Law (2005)
recommended text: Waddams The Law ofContracts (5th ed, 2005)
recommended text: Fridman The Law of Contract in Canada (5th ed, 2006)
37
Readings:
The order in the reading list is subject to change. Due totime constraints and judicial developments,
some readings may not be assigned, while others may be added on certain topics. Any readings not in
the Course Materials oron the Course Web Page will be distributed as handouts. You will be informed
of all changes.
Evaluation - Contracts
30% Mid-term examination (Monday, December 14,2009,9:00am)
70% Final examination (Tuesday, April 20,2008,9:00am):
This examination will comprise 70% of the final grade. If, however, a student receives a
higher grade on the final examination than on the mid-session examination, then the final
examination will comprise 90% of the final grade for that student and the mid-session
examination will comprise 10% ofthatstudent*s final grade.
Each examination in the course will not exceed three hours in duration, and may well occupy less time, and
will be CLOSED BOOK. Acopy of the syllabus and any relevant statutes will be provided.
Each examination will begraded using one of the following designations:
A+, A, A-, B+, B, B-t C+, C, C-, D+, D, D-, F+, F
For the purpose of determining the final course grades, each designation will be assigned the following
numerical value:
A+ = 13
B+ = 10
C+ = 7
D+ = 4
F+ = 1
A = 12
B= 9
C=6
D=3
F=0
A-= 11
B- = 8
C- = 5
D- = 2
Thefinal course grades willthen be ascertained as follows:
A+
12.50
11.50
- 13.00
- 12.49
B+
10.50
9.50
B
BC+
C
C-
8.50
7.50
6.50
5.50
4.50
-
A
A-
11.49
10.49
9.49
8.49
7.49
6.49
5.49
38
D+
D
F
=
3.50
- 4.49
=
1.50
0.00
-
=
- 3.49
1.49
Thus, as an example, a studentwho obtained an Aon the mid-session examination and a Bon the final
examination would receive a final grade of B+ (12 x 0.3 (3.6) plus 9 x 0.7 (6.3) = 9.9 = B+). Astudentwho
obtained a Bon the mid-session examination and an Aon the final examination would receive a final grade
of Asince thejinal examination for that student would comprise 90% of thefinal grade (9x0.1 (0.9) plus 12
x 0.9(10.8) = 11.7 = A). Had the final examination for that student been worth the normal 70%, that student
would have received a grade ofA- (9x 0.3(2.7) plus 12x 0.7(8.4) = 11.1= A-).
Note that, in rare circumstances, final grades may have to be changed from those that would beawarded
under theabove system in order tomeet the Faculty's grading requirements. Any such changes will be
made across the board on a consistent mathematical basis.
Academic Integrity
Students must write their assignments in their own words. Whenever a student takes an idea ora passage
from the text of another author, he or she must acknowledge that debt by the use of quotation marks
(where appropriate) and by proper referencing. Plagiarism is a major scholastic offence. (See Scholastic
Offence Policy in theWestern Academic Calendar.)
Plagiarism - the "act oran instance of copying or stealing another's words or ideas and attributing them as
one's own." (Excerpted from Black's Law Dictionary, West Group, 1999, 7th ed., p. 1170). This concept
applies with equal force to all academic work, including theses, assignments or projects of any kind,
comprehensive examinations, laboratory reports, diagrams, and computer projects.
39
Contract Law 402.01
Faculty of Law, University of Calgary
Professor Girgis
2009-2010
I. THE ESSENTIAL ELEMENTS OF A CONTRACT
A. The Nature of Contract
Waddams 777© Law of Contracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
3-12
1-27
B. Intention To Create Legal Relations
Balfour v. Balfour, [1919] 2 K.B. 571 (C.A.)
RoseandFrank Co v. JR Crompton andBros. Ltd., [1923] 2 K.B. 261 (C.A.)
Toronto Dominion Bank v. Leigh Instruments Ltd. (Trustee of)
(1999), 178 D.L.R. (4*) 634(Ont. C.A.)
Waddams The Law of Contracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
243
246
247
103-117
111 -135
Bur nor 115-118
C. Offer and Acceptance
1. "Offers" and "Invitations to Treat"
Canadian Dyers Assn. Ltd. v. Burton (1920), 47O.L.R. 259(H.C.)
Pharmaceutical SocietyofGreat Britain v. Boots Cash Chemists (Southern) Ltd.,
[1953]1Q.B.401(C.A.)
Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q.B. 256(C.A.)
Leonard v. Pepsico Inc., 88 F. Supp. 2d 116 (S.D.N.Y. 1999)
Goldthorpe v. Logan, [1943] 2 D.L.R. 519(C.A.)
Harvela Investments Ltd. v. Royal Trust Co ofCanada (C.I.) Ltd.,
[1985] 2 All E.R. 966(HI.)
R. v. Ron Engineering &Construction (Eastern) Ltd. (1981), 119 D.L.R. (3d) 267 (S.C.C.)
M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd. (1999),
170 D.LR. (4*) 577 (S.C.C.)
Waddams 777e Law ofContracts (optional)
McCamus 77?e Law ofContracts (Essentials) (optional)
18
20
25
S.M. 1
30
33
35
38
18-28
31 -48;
115-118
2. Communication of Offer
Carlill v. Carbolic Smoke Ball Co., [1893] 1Q.B. 256 (C.A.)
Blair v. Western Mutual Benefit Assn., [1972] 4 W.W.R. 284 (B.C.C.A.)
Williams v. Carwardine (1833), 110 E.R. 590 (K.B.)
R. v. Clarke (1927), 40 C.LR. 227 (Aus. H.C.)
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
25
47
50
51
119-125
48-52
40
3. Acceptance
(a) Counter-Offer
Livingstone v. Evans, [1925] 4 D.LR. 769 (Alta. S.C.)
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
54
44-45
52-59
(b) Battle of the Forms
Butler Machine Tool Co. v. Ex-Cell-0 Corp., [1979] 1All E.R. 965 (C.A.) 56
Tywood Industries Ltd. v. St. Anne-Nackawic Pulp &Paper Co. Ltd. (1979), 100
D.LR.(3d)374(Ont.H.C.)
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
(c) Acceptance by Performance
58
50-56
59-67
Carlill v. Carbolic Smoke Ball Co., [1893] 1Q.B. 256 (C.A.)
Williams v. Carwardine (1833), 110 E.R. 590 (K.B.)
Dawson v. Helicopter Exploration Co., [1955] 5 D.L.R. 404 (S.C.C.)
Waddams The Law ofContracts (optional)
(d) Acceptance BySilence orConduct
Felthouse v. Bindley(1862), 142 E.R. 1037 (Ex. Ch.)
St. John Tug Boat Co. v. Irving Refinery Ltd., [1964] S.C.R. 614
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
25
50
66
119-125
72
75
64-70
68-73
(e) Unsolicited Goods and Services
Fair Practices Act
4. Communication of Acceptance
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
(a) Waiver of Communication Requirement: "Unilateral Contracts"
Carlill v. Carbolic Smoke Ball Co., [1893] 1Q.B. 256 (C.A.)
McCamus The Law ofContracts (Essentials) (optional)
(b) Mode of Communication
Eliason v. Henshaw (1819), 4 Wheat. 225
(c) Time and Place of Acceptance: "Postal Rules"
(supp.)
64-70
67-68
25
40-42
79
Household Fire &Carriage Accident Insurance Co. v. Grant(1879), 4 Ex. D. 216
(C.A.)
81
Holwell Securities v. Hughes, [1974] 1All E.R. 161 (C.A.)
Brinkibon Ltd. v. Stahag Stahl, etc., [1982] 1All E.R. 293 (HI.)
Rudder v. Microsoft Corp. (1999), 2 C.P.R. (4th) 474 (Ont. S.C.J.)
Waddams The Law ofContracts (optional)
85
88
93
70-78
McCamus The Law ofContracts (Essentials) (optional)
73-82
5. Termination of Offer
Waddams The Law ofContracts (optional)
(a) Counter-Offer
Livingstone v. Evans, [1925] 3 W.W.R. 453 (Alta. S.C.)
(b) Revocation
Byrne v. Van Tienhoven (1880), 5 C.P.D. 344
78-82
54
100
41
Dickinson v. Dodds (1876), 2 Ch. D. 463 (C.A.)
McCamus The Law ofContracts (Essentials) (optional)
(c) Revocation of Unilateral Offer
Errington v. Errington and Woods, [1952] 1 K.B. 290 (C.A.)
Waddams The Law of Contracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
(d) LapseofTime
Barrick v. Clark, [1950] 4 D.L.R. 529 (S.C.C.)
McCamus The Law ofContracts (Essentials) (optional)
(e) Death
97
82-85
102
120-121
85-89
103
55.-58
Lecture
D. Certaintyof Terms
Waddams 77?e Law of Contracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
28-40
91 -92
R. v. CAE Industries Ltd., [1985] 5 W.W.R. 481 (Fed. C.A.)
Waddams The Law of Contracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
114
42-44
104-110
1. Vagueness
2. Incomplete Terms
May andButcher Ltd. v. The King, [1934] 2 K.B. 17 (HI.)
Hillas and Co. Ltd. v. Arcos Ltd. [1932] All E.R. Rep. 494 (HI.)
Foley v. Classique Coaches Ltd., [1934] 2 K.B. 1 (C.A.)
McCamus The Law ofContracts (Essentials) (optional)
119
122
126
93-100
3. Agreements to Negotiate
Empress Towers Ltd. v. Bank ofNova Scotia (1990), 73 (4th) 400(B.C.C.A.)
131
Mannpar Enterprises Ltd. v. Canada (1999), 67 B.C.L.R. (3d) 64 (C.A.) 134
Wellington City Council v. Body Corporate 51702 (Wellington), [2002] 3 N.Z.L.R.
486(C.A.)
138
McCamus The Law ofContracts (Essentials) (optional)
144-147
4. Anticipation of Formalization
Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. (4th) 97 (Ont.
C.A.).
145
E. Consideration and Reliance
1. Introduction
Introduction and Study Guide
171-176
Brantford General Hospital Foundation v. Marquis Estate (2003), 67 O.R. (3d) 432
(S.CJ.)
161
Wood v. Lucy, Lady Duff-Gordon, 118 N.E. 214 (U.S. N.Y., 1914)
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
164
82-90
211-214
42
2. Nature of Consideration
Thomasv. 77wmas(1842), 2Q.B.851,114E.R.330
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
169
131 -132
214-226
3. Past Consideration
Eastwood v. Kenyon (1840), 113 E.R. 482 (Q.B.)
Lampleigh v. Brathwait(1615), 80 E.R. 255 (K.B.)
Waddams The Law ofContracts (optional)
McCamus* 777e Law ofContracts (Essentials) (optional)
166
168
132-136
* 232-238
4. Forbearance to Sue
B. (D.C.) v. Arkin (1996), 138 D.LR. (4*) 309 (Man. Q.B.), affd [1996] 10W.W.R.
689 (C A)
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
172
90-94
226-228
5. Pre-existing Legal Obligation
Waddams The Law ofContracts (optional)
94-101
McCamus The Law ofContracts (Essentials) (optional)
239-256
(a) Public Duty
Lecture
(b) Duty Owed to Third Party
Lecture
(c) Duty Owed to Promisor
Stilk v. Myrick (1809), 170 E.R. 1168 (Nisi Prius)
177
Gilbert SteelLtd. v. University Construction Ltd. (1976), 12O.R. (2d) 19 (C.A.)
178
Williams v. RoffeyBros. &Nicholls (Contractors) Ltd., [1990] 1 All E.R. 512 (C.A.)
182
Greater Fredericton Airport Authority Inc. v. NAV Canada (2008), 290 D.LR. (4th)
405(N.B.CA)
186
(i) Accord andSatisfaction
Foakes v. Beer(1884), 9 App. Cas. 605 (HI.)
192
Re Selectmove Ltd., [1995] 1W.LR. 474(C.A.)
210
Foot v. Rawlings
[1963] S.C.R. 197,41 W.W.R. 650,37 D.LR. (2d) 695 (S.C.C.)
195
(ii) Statute
Judicature Act, R.S.A. 2000, c. J-2, s. 13(1)
200
6. Promissory Estoppel
(a) Introduction
Hughes v. Metropolitan Railway Co. (1877), 2 App. Cas. 439 (HI.)
201
Central London Property Trust Ltd. v. High Trees House Ltd., [1947] 1 K.B. 130
203
McCamus The Law ofContracts (Essentials) (optional)
(b) Existing Legal Relationship
275-280
(c) Promise
43
John Burrows Ltd. v. Subsurface Surveys Ltd. (1968), 68 D.L.R. (2d) 354(S.C.C.)
205
283-285
McCamus The Law ofContracts (Essentials) (optional)
(d) Equities
D. &C. Builders Ltd. v. Rees, [1966] 2 Q.B. 617 (C.A.)
208
281-283
McCamus 77?e Law ofContracts (Essentials) (optional)
(e) Notice
Saskatchewan River Bungalows v. Maritime Life Assurance Co. [1994J2S.C.R.
^ 490, [1994] 7W.W.R. 37,20 Alta. L. R. (3d) 296 H
211
Infl Knitwear Architects Inc v. Kabob Investments Ltd(1995),
17B.C.LR.(3d)125(CA)
215
285-287
McCamus The Law ofContracts (Essentials) (optional)
(f) Reliance
WJ Alan &Co v. El Nasr Export &Import
[1972] 2 Q.B. 189, [1972] 2 All E.R. 127 (C.A.)
216
Societe Italo-Belgian v. Palm andVegetable Oils {Post Chaser)
[1982]1 AHE.R. 19(Q.B.)
220
McCamus The Law ofContracts (Essentials) (optional)
283-285
(g)"Sword" or "Shield"?
Petridis v. Shabinsky (1982), 132 D.L.R. (3d) 430 (Ont. H.C.)
227
Robichaud v. Caisse Populaire de Pokemouche Ltee. (1990), 69 D.LR. (4*) 589
(N.B.C.A.)
229
Combe v. Combe, [1951] 2 K.B. 215 (C.A.)
224
Waltons Stores (Interstate) Pty. Ltd. v. Maher (1988), 62 A.L.J.R. 110(H.C.)
230
M. (N.) v. A. (A.T.) (2003), 13 B.C.LR. (4*) 73 (CA)
McCamus The Law ofContracts (Essentials) (optional)
7. Promises Under Seal
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
239
280-281
Lecture
127-131
256-269
F. Doctrine of Privity
1.The History of Privity and Third Party Beneficiaries
Tweedle v. Atkinson (1861), 1 B. &S. 393,121 E.R. 762 (Q.B.)
Dunlop Pneumatic Tyre v. Selfridge &Co. [1915] A.C. 847 (HI.)
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
276
277
193-196
294-301
2. Ways in Which Third Parties May Acquire Benefits
Jackson v. Horizon Holidays Ltd., [1975] 3 All E.R. 92 (CA.)
S.M. 52
Woodar Investment Development Ltd. v. Wimpey Construction Co. Ltd.,
[1980]1 AIIE.R. 571 (H.L.)
S.M. 55
Waddams The Law ofContracts (optional)
196-204
(a) Statute
McCamus The Law ofContracts (Essentials) (optional)
Lecture
307-308
44
(b) Specific Performance
Beswick v. Beswick, [1966] 1 Ch. 538 (C.A.), affd [1968] A.C. 58(HI.)
284
(c)Trust
Lecture
McCamus The Law ofContracts (Essentials) (optional)
(d) Agency
303-304
Lecture
McCannell v. Mabee McLaren Motors Ltd.
36 B.C.R. 369, [1926] 1W.W.R. 353, [1926] 1 D.LR. 282 (CA.)
291
N.Z. Shipping Co. Ltd. v. A.M. Satterthwaite &Co. Ltd., [1974] 1 All E.R. 1015
(P.C) (N.Z.)
McCamus 77?e Law ofContracts (Essentials) (optional)
301 -303
(e) Employment
London Drugs Ltd. v. Kuehne &Nagel International Ltd., [1993] 1W.W.R. 1
(S.C.C.)
298
McCamus The Law ofContracts (Essentials) (optional)
(f) Subrogation
308-309
Eraser River Pile &Dredge Ltd. v. Can-Dive Services Ltd. (1999), 176 D.L.R. (4th)
257 (S.C.C)
310
McCamus The Law ofContracts (Essentials) (optional)
309-313
II. REPRESENTATIONS AND TERMS
A. Introduction: Puffs, Representations andTerms
Lecture
B. Misrepresentation and Rescission
Smith v. Land and House Property Corp. (1884), 28 Ch. D. 7 (CA.)
Redgrave v. Hurd (1881), 20 Ch. D. 1 (CA.)
359
355
Bank ofBritish Columbia v. Wren Developments (1973), 38 D.L.R. (3d) 759 (B.C.S.C)
Kupchak v. Dayson Holdings Ltd. (1965), 53 D.L.R. (2d) 482 (B.C.CA)
Ennis v. Klassen, [1990] 4 W.W.R. 609 (Man. CA.)
McCamus The Law ofContracts (Essentials) (optional)
360
363
S.M.: 95
325-348
C. Representations andTerms: Interpreting a Contract
1. ExpressTerms
Waddams The Law ofContracts (optional)
(a) "Representations" and 'Terms"
412-428
Heilbut, Symons &Co. v. Buckleton, [1913] A.C. 30(HI.)
371
Dick Bentley Productions Ltd. v. Harold Smith (Motors) Ltd., [1965] 2 All E.R. 65
(CA.)
376
Leaf v. International Galleries, [1950] 2 K.B. 86(CA.)
378
McCamus The Law ofContracts (Essentials) (optional)
690-695
(b) Classification of Terms: "Condition", "Warranty" and"Innominate"
Hong Kong Fir Shipping Co. Ltd. v. Kawasaki Kisen Kaisha Ltd., [1962] 2 Q.B. 26
(CA.)
436
McCamus The Law ofContracts (Essentials) (optional)
615-639
45
2. Implied Terms
McCamus The Law ofContracts (Essentials) (optional)
(a) Business Efficacy: The "Officious Bystander"
(b) Usageand Custom
(c) Previous Dealings
(d) Statute
729-747
Lecture
Lecture
Lecture
Lecture
3. The Parol Evidence Rule
McCamus The Law ofContracts (Essentials) (optional)
(a) The Common Law Principles
Hawrish v. Bank ofMontreal (1969), 2 D.LR. (3d) 600 (S.C.C.)
193-207
412
Bauer v. Bank of Montreal
[1980] 2 S.C.R. 102,33 CB.R. (N.S.) 291,110 D.LR. (3d) 424
Gallen v. Butterley(1984), 53 B.C.LR. 38 (CA.)
(b) Statutory Modification ofthe Parol Evidence Rule
Alberta Fair Trading Act, R.S.A. 2000, c. F-2, s.7.2
415
422
Lecture
(supp.)
4. Interrelation between Contract and Tort
Esso Petroleum Co. v. Mardon, [1976] Q.B. 801 (CA.)
McCamus The Law ofContracts (Essentials) (optional)
S.M.: 71
STANDARD FORM CONTRACTS AND EXCLUSION CLAUSES
A. Introduction
Fridman (optional)
Waddams (optional)
608-625
338-354
B. Control of Standard Form Contracts: Introduction
Introduction
Use of Exclusion Clauses
502-505
508-509
C. Incorporation and Notice
1. Unsigned Documents
Parker v. South Eastern Ry. Co. (1877), 2 C.P.D. 416 (CA.)
supp.
Thornton v. Shoe Lane Parking Ltd., [1971] 2 Q.B. 163 (C.A.)
478
Interfoto Picture Library Ltd. v. Stiletto Visual Programmes Ltd., [1988] 1 All E.R. 348 (CA.) 483
McCutcheon v. David MacBrayne Ltd., [1964] 1All E.R. 430 (HI.)
488
McCamus (optional)
181 -190
2. Signed Documents
Tilden Rent-A-Car Co. v. Clendenning (1978), 18 O.R. (2d) 601 (CA.)
Delaney v. Cascade River Holidays (1983), 44 B.C.LR. 24,24C.C.L.T. 6 (CA.)
492
supp.
10 46
McCamus (optional)
190-193
D. Strict Construction
Lecture
Fridman (optional)
615-625
E. Doctrine of Fundamental Breach
Karsales (Harrow) Ltd. v. Wallis, [1956] 2 All E.R. 866 (CA.)
506
Photo Production Ltd. v. Securicor Transport Ltd., [1980] 3All E.R. 556 (HI.)
508
Hunter Engineering Co. Inc. v. Syncrude Canada Ltd. (1989), 57 D.LR. (4th) 321 (S.C.C.) 514
Eraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997), 148 D.L.R. (4th) 496 (Ont.
CA.)
528
Solway v. Davis Moving &Storage Inc. (2002), 62 O.R. (3d) 522 (CA.)
533
Plas-Tex Canada Ltd. v. Dow Chemicalof Canada Ltd.
(2004), 245 D.L.R. (4*) 650 (Alta. CA.)
McCamus (optional)
Fridman (optional)
Fridman (optional)
F. Consumer Protection Legislation
Alberta Fair Trading Act, R.S.A. 2000, c. F-2, s.2
538
749-778
598-607
626-637
(supp.)
IV. TERMINATION OF CONTRACT
A. Termination by Performance or Substantial Performance
Fairbanks Soap Co. v. Sheppard [1953] 1S.C.R. 314, [1953] 2 D.LR. 193 (SCC)
MarklandAssociates Ltd v. Lohnes (1973), 33 D.L.R. (3d) 493 (NSSC)
450
454
B. Termination by Agreement
Lecture
C. Rescission and Termination
Lecture
D. Termination for Breach: "Conditions" and "Innominates"
1. Conditions and Fundamental Terms
Hong Kong Fir Shipping Co v. Kawasaki Kisen Kaisha
[1962] 2 Q.B. 26, [1962] 1 All E.R. 474 (CA.)
(a) "Fundamental" Terms - See section IV(D) below
2. Anticipatory Breach
(a) Definition
(b) Consequences
436
Lecture
Lecture
4711
IV. DAMAGES FOR BREACH OF CONTRACT
A. The Interests Protected
1. Introduction
Holmes The Path ofthe Law (optional)
Posner Economic Analysis of Law (optional)
Fuller &Perdue 'The Reliance Interest' (optional)
2. The Expectation Interest
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
Lecture
822
822
824
505-506
815-819
3. The Reliance Interest
McRae v. Commonwealth Disposals Commission
(1950),84CLR.377(Aus.H.C)
Bowlay Logging Ltd. v. DomtarLtd.
(1982), 135 D.LR. (3d) 179(B.C.CA.)
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
4. The Restitution Interest
Attorney-General v. Blake [2001] 1 A.C. 268, [2000] H.LJ. No. 47 (HL)
McCamus The Law ofContracts (Essentials) (optional)
B. Quantification of Damages
1. Difficulty ofAssessment
Chaplin v. Hicks, [1911] 2 K.B. 786 (CA.)
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
Fridman The Law ofContract in Canada (optional)
793
797
516-518
832-837
Lecture
805
972-979
814
528-530
847-849
729-736
2. "Difference in Value" or "Cost of Cure"?
Groves v. John Wunder (1939), 286 N.W. 235 (Minn. CA.)
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
Fridman 777e Law ofContract in Canada (optional)
C. Loss of Enjoyment andOther Intangible Interests
Jarvis v. Swan Tours [1973] 1 Q.B. 233 (CA.)
McCamus The Law ofContracts (Essentials) (optional)
Fridman The Law ofContract in Canada (optional)
Waddams The Law ofContracts (optional)
816
550-551
840-847
729-736
825
875-879
741 -751
538-543
D. Punitive Damages
12 48
*Vorvis v. Insurance Corp ofBritish Columbia
[1989] 1 S.C.R. 1085,36 B.C.L.R. (2d) 273[1989] 4 W.W.R. 218
828
Whiten v. Pilot Insurance
[2002] 1 S.CR. 595,2002 SCC 18,209 D.LR. (4*) 257
846
Fidler v. Sun LifeAssurance Co. of Canada (2006), 271 D.LR. (4th) 1 (S.C.C.) S.M.: 78
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
Fridman The Law ofContract in Canada (optional)
538-543
879-896
753-757
E. Remoteness of Damage
Hadley v. Baxendale (1854), 9 Exch. 341,156 E.R. 145
858
Victoria Laundry v. Newman Indust. Ltd.
[1949] 2 K.B. 528, [1949] 1 All E.R. 997 (CA.)
861
Koufos v. Czamikow (The Heron II) [1969] 1 A.C. 350, [1967] 3 All E.R. 686(HL) 868
Scyrup v. Economy TractorParts
(1963), 43 W.W.R. 49,40 D.L.R. (2d) 1026 (Man. CA.)
865
Waddams The Law ofContracts (optional)
530-537
McCamus The Law ofContracts (Essentials) (optional)
854-865
Fridman The Law ofContract in Canada (optional)
719-741
F. Mitigation of Damages
Asamara OH Corp. v. Sea Oil&GeneralCorp., [1979] 1 S.CR. 633
White andCarter (Councils) v. McGregor
Waddams 77?e Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
Fridman The Law ofContract in Canada (optional)
G. Time of Measurement of Damages
Semelhago v. Paramadevan, [1996] 2 S.C.R. 415
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
871
(suppl)
543-553
865-871
778-784
879
506-511
871 -874
V. OTHER REMEDIES FOR BREACH OF CONTRACT
A. Specific Performance
John E Dodge Holdings Ltd. V. 805062 Ont Ltd (2001), 56 O.R. (3d) 341,
additional reasons at (2001), 2001 CarswellOnt 4403, affirmed (2003), 223 D.L.R.
(4th) 541j 34 b.LR. (3d) 12(CA.)
904
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
Semelhago v. Paramadevan [1996] 2 S.CR. 415 (SCC)
484-494
908-924
879
Waddams The Law ofContracts (optional)
McCamus The Law ofContracts (Essentials) (optional)
494-496
947-956
B. Injunctions
4913
VI. CONTRACTUAL DEFECTS
A. Incapacity
Lecture
1. Minors
Waddams The Law of Contracts (optional)
471-475
2. Persons of Unsound Mind
Hart v. O'Connor, [1985] A.C. 1000,2All E.R. 880 (P.C)
Waddams The Law of Contracts (optional)
721
477-480
B. Absence of Writing
1. The Formality of Writing
Waddams The Law of Contracts (optional)
Lecture
C. Mistake and Frustration
Lecture
1.
157-176
Mistakes in Assumptions
a.
Common Law
Bell v. Lever Bros. Ltd., [1932] A.C. 161 (HI.)
McRae v. Commonwealth Disposals Commission, supra, 3 A
560
565
b. Equity
Solle v. Butcher, [1950] 1 K.B. 671 (CA.)
571
The Great Peace, [2002] 4 All E.R. 689 (CA.)
574
Miller Paving Ltd. v. B. Gottardo Construction Ltd. (2007), 86 O.R. (3d) 161 (CA.) 579
2.
Mistakes as to Contractual Terms
a.
Mutual Mistakes
Staiman Steel Ltd. v. Commercial & Home Builders Ltd.
(1976), 13 O.R. (2d) 315 (H.C.)
544
b. Mistakes Known to OtherParty
Smith v. Hughes (1871), L.R. 6 Q.B. 597
3.
Mistaken Tenders
R. v. Ron Engineering &Construction (Eastern) Ltd., supra, 1A a (iii)
4.
546
554
Rectification
1450
Bercovici v. Palmer (1966), 59 D.L.R. (2d) 513 (Sask. Q.B. and CA.)
601,603
Sylvan Lake Golf& Tennis Club Ltd. v. Performance Industries Ltd. (2002), 209 D.L.R. (4th) 318
(S.C.C)
604
5.
Mistakes and Third Parties
a. Mistaken Identity
Shogun Finance Ltd. v. Hudson, [2004] 1 All E.R. 215 (HI.)
* 583
b. Documents Mistakenly Signed
Saunders v. Anglia Bldg. Society, [1971] A.C. 1004 (HI.)
Marvco Color Research Ltd. v. Harris (1982), 141 D.L.R. (3d) 577 (S.C.C.)
6.
Frustration: Scope of Doctrine
Paradine v. Jane (1647), 82 E.R. 897(K.B.)
Taylor v. Caldwell (1863), 122 E.R. 695 (Q.B.)
Claude Neon General Advertising Ltd.v. Sing, [1942] 1 D.L.R. 26 (N.S.S.C)
Davis Contractors Ltd. v. Fareham U.D.C., [1956] A.C 696 (HI.)
The Sea Angel, [2007] EWCA Civ 547
7.
591
593
620
621
626
628
642
Self-Induced Frustration
Maritime National Fish Ltd. v. Ocean Trawlers Ltd., [1935] A.C. 524(P.C) (N.S.) 648
8.
Contracts Involving Land
Capital Quality Homes Ltd. v. Coiwyn Construction Ltd.
(1975), 61 D.L.R. (3d) 385 (Ont. CA.)
632
Victoria Wood Development Corp. v. Ondrey(1977), 14 O.R. (2d) 723 (H.C), affd(1978), 92
D.LR. (3d) 229(CA.)
635
KBKNo. 138 Ventures Ltd. v. Canada Safeway Ltd.
(2000), 185 D.L.R. (4th) 650 (B.C.CA.)
9.
636
Effects of Doctrine
Frustrated Contracts Act, R.S.A. 2000, c. F-27
S.M.: 105
D. Duress
Gordon v. Roebuck(1992), 9. O.R. (3d) 1,92 D.LR. (4*) 670 (CA.)
670
McCamus The Law ofContracts (Essentials) (optional)
367-382
5115
E. Undue Influence
Geffen v. Goodman Estate [1991] 2 S.C.R. 353,81 D.L.R. (4*) 221 (SCC) 680
Royal Bank of Scotland v. Etridge
[2001] 3 W.LR. 1021, [2001] 4 All E.R. 449 (HL)
688
McCamus The Law ofContracts (Essentials) (optional)
382-402
F. Unconscionability
Morrison v. Coast Finance
(1965), 54 W.W.R. 257,55 D.LR. (2d) 710 (BCCA)
697
Marshall v. Can. Permanent Trust Co.
(1968), 69 D.L.R. (2d) 260(Alta. SC)
Lloyds Bank v. Bundy [1975] Q.B. 326, [1974] 3 All E.R. 757 (CA.)
Harry v. Krewutziger(W8), 9 B.C.LR. 166,95 D.LR. (3d) 231 (CA)
G. Illegality
701
704
709
Lecture
1652
LAW 402: CONTRACTS 2009-2010
SECTION TWO
The course is allotted 5 credit hours. It is taught in both semesters. There are two classes per week. Each
class is 75 minutes in duration.
INSTRUCTOR
Michael llg
Office: 4332
Phone: 403-220-6479
E-mail: mpilg@ucalgary.ca
READING MATERIALS
The two sets of materials required for the course are Ben-lshai and Percy, Contracts: Cases and
Commentaries (8th ed. 2009), which is available from the University Bookstore, and Rafferty, Contracts:
Supplementary Materials (2009), which is available on Blackboard.
There are also various textbooks on Contracts to which students may find it useful to refer. The four
major Canadian works on the market are:
Fridman, The Law of Contract in Canada (5th ed. 2006)
McCamus, The Law of Contracts (2005)
Swan, Canadian Contract Law (2nd ed. 2009)
Waddams, The Law of Contracts (5th ed. 2005)
English textbooks in this area include:
Beale, ed., Chitty on Contracts (30th ed. 2008) esp. Volume 1
Furmston, Cheshire, Fifoot &Furmston's Law ofContract (15th ed. 2006)
Furmston, ed.,The Law of Contract (3rd ed. 2007)
Smith, Atiyah's Introduction to the Law ofContract (6th ed. 2005)
Peel, Treitel: The Law of Contract (12lh ed. 2007)
Copies of these Canadian and English textbooks can be found on reserve in the Law Library. Some
students may find it convenient to have their own copy of a textbook and to that end a number of copies
of McCamus are available in the University Bookstore.
TOPICS
The topics covered in the course are listed on the syllabus. Over the year, however, additions to, or
deletions from, that list may have to be made where circumstances warrant.
EVALUATION
The final grade in Contracts will be based upon a student's performance in the following two components:
(a)
Mid-Session Examination
This examination will comprise 30% of the final grade.
53
(b)
Final Examination
This examination will comprise 70% of the final grade. If, however, a student receives a
higher grade on the final examination than on the mid-session examination, then the final
examination will comprise 90% of the final grade for that student and the mid-session
examination will comprise 10% of that student's final grade.
Each examination in the course will not exceed three hours in duration, and may well occupy less time,
and will be CLOSED BOOK. A copy of the syllabus and any relevant statutes will be provided.
METHOD OF ARRIVING AT FINAL COURSE GRADE
Each examination and each component of the advocacy assignment will be graded using one of the
following designations:
A+, A, A-,
B+,
B, B-, C+,
C, C-,
D+, D, D-, F+,
F
For the purpose of determining the final course grades, each designation will be assigned the following
numerical value:
A+ = =13
B+ = =10
C+ =• 7
A = 12
B = 9
A- = 11
B- = 8
C = 6
D+ =:4
D = 3
C- = 5
D- = 2
F+ = 1
F = 0
will then be ascertained as follows:
A+
A
AB+
B
BC+
C
CD+
D
F
12.50
- 13.00
=
11.50
- 12.49
=
10.50
- 11.49
=
9.50
- 10.49
—
=
8.50
-
9.49
=
7.50
-
8.49
=
6.50
-
7.49
=
5.50
-
6.49
4.50
-
5.49
3.50
1.50
0.00
-
4.49
-
3.49
-
1.49
=
=
=
=
Thus, as an example, a student who obtained an A on the mid-session examination and a B on the final
examination would receive a final grade of B+ (12 x 0.3 (3.6) plus 9 x 0.7 (6.3) = 9.9 = B+). A student who
obtained a B on the mid-session examination and an A on the final examination would receive a final
grade of A since the final examination for that student would comprise 90% of the final grade (9 x 0.1
(0.9) plus 12 x 0.9 (10.8) = 11.7 = A). Had the final examination for that student been worth the normal
70%, that student would have received a grade of A- (9 x 0.3 (2.7) plus 12 x 0.7 (8.4) = 11.1= A-).
Note that, in rare circumstances, final grades may have to be changed from those that would be awarded
under the above system in order to meet the Faculty's grading requirements. Any such changes will be
made across the board on a consistent mathematical basis.
54
LAW 402: CONTRACTS
SECTION TWO
SYLLABUS 2009-2010
PROFESSOR M. ILG
References are either to Ben-lshai and Percy, Contracts: Cases and Commentaries (8th ed. 2009) (Cb.) orto Rafferty,
Contracts: Supplementary Materials (2009) (S.M.).
1.
ESSENTIAL ELEMENTS OF CONTRACTS
A.
Agreement
a.
Offer
(i) Definition
Canadian Dyers Assn. Ltd. v. Burton (1920), 47 O.L.R. 259 (H.C.) Cb.: 18
(ii) Offer or Invitation to Treat
Carlill v. Carbolic SmokeBall Co., [1893] 1 Q.B. 256 (CA.) Cb.: 25
Pharmaceutical Society ofGreat Britain v. Boots Cash Chemists (Southern) Ltd., [1953] 1 Q.B. 401 (C A)
Cb.: 20
R. v. Dawood, [1976] 1 W.W.R. 262 (Alta. C.A.) S.M.: 8
(iii) Auctions and Tenders
R. v. Ron Engineering &Construction (Eastern) Ltd. (1981), 119 D.LR. (3d) 267 (S.C.C.) Cb.: 35
Chinook Aggregates Ltd. v. District ofAbbotsford, [1990] 1 W.W.R. 624 (B.C.C.A.) S.M.: 11
M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd. (1999), 170 D.LR. (4*1) 577 (S.C.C.) Cb.: 38
b.
Communication of Offer
Williams v. Carwardine (1833), 110 E.R. 590 (K.B.) Cb.: 50
R. v. Clarke (1927), 40 C.LR. 227 (Aus. H.C.) Cb.: 51
Blair v. Western Mutual Benefit Assn., [1972] 4 W.W.R. 284 (B.C.C.A.) Cb.: 47
c.
Acceptance
(i) By Words or Conduct
St. John Tug Boat Co. v. Irving Refinery Ltd., [1964] S.C.R. 614 Cb.: 75
(ii) Silence as Acceptance
Felthouse v. Bindley (1862), 142 E.R. 1037 (Ex. Ch.) Cb.: 72
(iii) Acceptance, Counter-Offer and Requestfor Information
Livingstone v. Evans, [1925] 4 D.LR. 769 (Alta. S.C.) Cb.: 54
Butler Machine Tool Co. v. Ex-Cell-0 Corp., [1979] 1 All E.R. 965 (CA.) Cb.: 56
Tywood Industries Ltd. v. St. Anne-Nackawic Pulp &Paper Co. Ltd. (1979), 100 D.LR. (3d) 374 (Ont
H.C) Cb.: 58
(iv) Unilateral and Bilateral Contracts
Dawson v. Helicopter Exploration Co., [1955] 5 D.LR. 404 (S.C.C) Cb.: 66
55
d.
Communication of Acceptance
(i) Mode of Communication
Eliason v. Henshaw (1819), 4 Wheat. 225 Cb.: 79
(ii) Time of Acceptance - Postal Rules
Henthorn v. Fraser, [1892] 2 Ch. 27 (C.A.) S.M.: 21
Holwell Securities v. Hughes, [1974] 1 All E.R. 161 (CA.) Cb.: 85
Brinkibon Ltd. v. Stahag Stahl, etc., [1982] 1 All E.R. 293 (H.L.) Cb.: 88
e.
Termination of Offer
(i) Rejection or Counter-Offer, supra, 1 A c (iii)
(ii) Revocation
Dickinson v. Dodds (1876), 2 Ch. D. 463 (C.A.) Cb.: 97
(iii) Revocation of Unilateral Offer
Petterson v. Pattberg, 161 N.E. 428 (N.Y. Ct. Apps. 1928) S.M.: 27
Errington v. Errington and Woods, [1952] 1 K.B. 290 (CA.) Cb.: 102
(iv) Lapse of Time
Manchester Diocesan CouncilforEducation v. Commercial and General Investments Ltd., [1969] 3 All
E.R. 1593 (Ch. D.)S.M.:31
Barrick v. Clark, [1950] 4 D.LR. 529 (S.C.C) Cb.: 103
f.
Certainty
(i) Ambiguous, Vague or Missing Terms
R. v. CAE Industries Ltd., [1985] 5 W.W.R. 481 (Fed. CA.) Cb.: 114
May and Butcher Ltd. v. The King, [1934] 2 K.B. 17 (H.L) Cb.: 119
Hillas and Co. Ltd. v. Arcos Ltd. [1932] All E.R. Rep. 494 (H.L.) Cb.: 122
Foley v. Classique Coaches Ltd., [1934] 2 K.B. 1 (CA.) Cb.: 126
(ii) Agreements to Negotiate
Wellington City Council v. Body Corporate 51702 (Wellington), [2002] 3 N.Z.L.R. 486 (C.A.) Cb.: 138
Empress Towers Ltd. v. Bank ofNova Scotia (1990), 73 (4th) 400 (B.C.C.A.) Cb.: 131
Mannpar Enterprises Ltd. v. Canada (1999), 67 B.C.L.R. (3d) 64 (C.A.) Cb.: 134
(iii) Agreements with Formal Contract to Follow
Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.LR. (4th) 97 (Ont. CA.) Cb.: 145
g.
Conditional Agreements
(i) Condition Precedent to Existence or Performance
Wiebe v. Bobsien, [1985] 1 W.W.R. 644 (B.C.S.C), aff'd [1986] 4 W.W.R. 270 (B.C.C.A.)
Cb.: 321, 327
(ii) Parties' Obligations
Dynamic Transport Ltd. v. O.K. Detailing Ltd. (1978), 85 D.L.R. (3d) 19 (S.C.C.) Cb.: 258
Eastwalsh Homes Ltd. v. Anatal Developments Ltd. (1993), 100D.LR. (4th) 469 (Ont. C.A.) Cb.: 335
(iii) Unilateral Waiver
Turney v. Zhilka, [1959] S.C.R. 578 Cb.: 339
56
Beauchamp v. Beauchamp (1972), 32 D.L.R. (3d) 693 (Ont. CA.) Cb.: 340
Bamett v. Harrison, [1976] 2 S.C.R. 531 Cb.: 341
B.
Intention to Create Legal Relations
Balfourv. Balfour, [1919] 2 K.B. 571 (C.A.) Cb.: 243
C
Consideration and Reliance
a.
Definition of Consideration
Brantford General Hospital Foundation v. Marquis Estate (2003), 67 O.R. (3d) 432 (S.C.J.) Cb.: 161
b.
Past Consideration
Lampleigh v. Brathwait (1615), 80 E.R. 255 (K.B.) Cb.: 168
c.
Adequacy of Consideration
d.
Forbearance
B. (D.C.) v. Arkin0996), 138 D.L.R. (4,h) 309 (Man. Q.B.), aff'd [1996] 10 W.W.R. 689 (C.A.) S.M •39
Royal Bank of Canada v. Kiska, [1967] 2 O.R. 379 (CA.) S.M.: 42
e.
Public Duty
f.
Duty Owed to Third Party
g. DutyOwed to Other Contracting Party
Stilk v. Myrick (1809), 170 E.R. 1168 (Nisi Prius) Cb.: 177
Gilbert Steel Ltd. v. University Construction Ltd. (1976), 12 O.R. (2d) 19 (C.A.) Cb.: 178
Williams v. RoffeyBros. &Nicholls (Contractors) Ltd., [1990] 1 All E.R. 512 (C.A.) Cb.: 182
Greater Fredericton Airport Authority Inc. v. NAV Canada (2008), 290 D.LR. (4,h) 405 (N.B.C.A.) Cb.: 186
(i) Discharge of Duty by Part Performance
Foakes v. Beer(1884), 9 App. Cas. 605 (H.L.) Cb.: 196
Re Selectmove Ltd., [1995] 1 W.LR. 474 (CA.) Cb.: 195
Judicature Act, R.S.A. 2000, c. J-2, s. 13(1) Cb.: 200
h.
Promises under Seal
Royal Bank of Canada v. Kiska, Cb.: 252
i.
Promissory Estoppel and Waiver
(i) General
Hughes v. Metropolitan Railway Co. (1877), 2 App. Cas. 439 (H.L.) Cb.: 201
Central London Property Trust Ltd. v. High Trees House Ltd., [1947] 1 K.B. 130 Cb.: 203
(ii) Requisite Promise
John Burrows Ltd. v. Subsurface Surveys Ltd. (1968), 68 D.L.R. (2d) 354 (S.C.C.) Cb.: 205
(iii) Equitable Nature of Doctrine
57
D. & C. Builders Ltd. v. Rees, Cb.: 208
(iv) Suspension or Extinguishment of Rights - Retraction and Reliance
Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co. (1994), 115 D.L.R. (4th) 478 (S.C.C.)
Cb.:211
International Knitwear Architects Inc. v. Kabob Investments Ltd. (1995), 17 B.C.L.R. (3d) 125 (CA.) Cb.:
215
The Post Chaser, [1982] 1 All E.R. 19 (Q.B.D.) Cb.: 220
(v) Variation of Existing or Creation of New Relationship
Combe v. Combe, [1951] 2 K.B. 215 (C.A.) Cb.: 224
Robichaud v. Caisse Populaire de Pokemouche Ltie. (1990), 69 D.L.R. (4,h) 589 (N.B.C.A.) Cb.: 229
Kornerup v. Raytheon Canada Ltd. (2008), 294 D.L.R. (4th) 162(B.C.C.A.) S.M.: 48
Waltons Stores (Interstate) Pty. Ltd. v. Maher(1988), 62 A.LJ.R. 110 (H.C.) Cb.: 230
M. (N.) v. A. (A.T.) (2003), 13 B.C.LR. (4,h) 73 (CA.) Cb.: 220
D.
Privity
a.
Enforcement of Contracts by Third Party Beneficiaries
Beswick v. Beswick, [1966] 1 Ch. 538 (CA.), aff'd [1968] A.C. 58 (H.L.) Cb.: 283, 284
Jackson v. Horizon Holidays Ltd., [1975] 3 All E.R. 92 (C.A.) S.M.: 52
Woodar Investment Development Ltd. v. Wimpey Construction Co. Ltd., [1980] 1 All E.R. 571 (H.L.) S.M.: 55
b.
Reliance on Contracts by Third Party Beneficiaries for Defensive Purposes
(i) Exemption Clauses
N.Z. Shipping Co. Ltd. v. A.M. Satterthwaite & Co. Ltd., [1974] 1 All E.R. 1015 (P.C) (N.Z.) Cb.: 293
London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1993] 1 W.W.R. 1 (S.C.C) Cb.: 298
Edgeworih Construction Ltd. v. N.D. Lea &Associates Ltd. (1993), 107 D.L.R. (4th) 169 (S.C.C) Cb.: 308
(ii) Waivers of Subrogation
Eraser River Pile &Dredge Ltd. v. Can-Dive Services Ltd. (1999), 176 D.LR. (4,h) 257 (S.C.C.) Cb.: 310
2.
CONTRACTUAL TERMS
A.
Implied Terms
Machtinger v. HOJ Industries Ltd. (1992), 91 D.LR. (4,h) 491 (S.C.C) Cb.: 463
B.
Express Terms
a.
Parol Evidence Rule
Hawrish v. Bank of Montreal(1969), 2 D.LR. (3d) 600 (S.C.C) Cb.: 412
Gallen v. Butterley(1984), 53 B.C.L.R. 38 (CA.) Cb.: 422
Ahone v. Holloway (1988), 30 B.C.LR. (2d) 368 (CA.) S.M.: 67
b.
Mere Representations or Terms of Contract
Heilbut, Symons &Co. v. Buckleton, [1913] A.C. 30 (H.L.) Cb.: 371
DickBentley Productions Ltd. v. Harold Smith (Motors) Ltd., [1965] 2 All E.R. 65 (C.A.) Cb.: 376
C
Classification of Terms - Right to Terminate for Breach
58
Hong Kong FirShipping Co. Ltd. v. KawasakiKisen Kaisha Ltd., [1962] 2 Q.B. 26 (CA.) Cb.: 436
Krawchuk v. Ulrychova, [1996] 8 W.W.R. 183 (Alta. Prov. Ct.) S.M.: 74
3.
DAMAGES FOR BREACH OF CONTRACT
A.
Measure of Damages: The Interests Protected
Fuller and Perdue, The Reliance Interestin Contract Damages Cb.: 783
McRae v. Commonwealth Disposals Commission (1950), 84 C.L.R. 377 (Aus. H.C.) Cb.: 793
BowlayLogging Ltd. v. DomtarLtd. (1982), 135 D.LR. (3d) 179 (B.C.C.A.) Cb.: 797
Peevyhouse v GarlandCoal &Mining Co. (blackboard)
Nu-West Homes Ltd. v. Thunderbird Petroleums Ltd. (1975), 59 D.LR. (3d) 292 (Alta. CA.) Cb: 821
B.
Certainty
(i) Loss of a Chance
Chaplin v. Hicks, [1911] 2 K.B. 786 (C.A.) Cb.: 814
C
Causation
Hodgkinson v. Simms, [1994] 3 S.C.R. 377 Cb.: 850
D.
Remoteness of Damage
Hadley v. Baxendale (1854), 156 E.R. 145 Cb.: 858
Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd., [1949] 2 K.B. 528 (C.A.) Cb •861
The Heron II, [1969] 1 A.C. 350 (H.L.) Cb.: 868
E.
Intangible Losses
Jarvis v Swans Tours [1973] 1 Q.B. 233 (CA.) Cb.: 825
Fidler v. Sun Life Assurance Co. ofCanada (2006), 271 D.LR. (4th) 1 (S.C.C.) S.M.: 78
F.
Mitigation
Asamara Oil Corp. v. Sea Oil &General Corp., [1979] 1 S.CR. 633 Cb.: 871
H.
Eouitable Remedies
a.
Specific Performance
John E. Dodge Holdings Ltd. v805062 Ontario Ltd. (2003), 63 O.R. (3d) 304 (CA.) Cb.: 904
b.
Personal Service
Warner Bros. Pictures Inc. v. Nelson [1936] 3 All E.R. 160 Cb.: 910
4.
STANDARD FORM CONTRACTS AND EXCLUSION CLAUSES
A. General Principles of Contractual Interpretation
Scott v. Wawanesa Mutual Insurance Co. (1989), 59 D.L.R. (4th) 660 (S.C.C.) Cb.: 468
59
B. Judicial Control of Standard Form Contracts and Exclusion Clauses
a.
Incorporation
(i) Unsigned Documents
Thornton v. Shoe Lane Parking Ltd., [1971] 2 Q.B. 163 (CA.) Cb.: 478
Interfoto Picture Library Ltd. v. Stiletto Visual Programmes Ltd., [1988] 1 All E.R. 348 (CA.) Cb.: 483
McCutcheon v. DavidMacBrayne Ltd., [1964] 1 All E.R. 430 (H.L.) Cb.: 488
(ii) Signed Documents
Tilden Rent-A-Car Co. v. Clendenning (1978), 18 O.R. (2d) 601 (C.A.) Cb.: 492
Karroll v. SilverStar Mountain Resorts Ltd. (1988), 35 B.C.L.R. (2d) 160 (S.C.) Cb.: 496
978011 Ontario Ltd. v. Cornell Engineering Co. (2001), 53 O.R. (3d) 783 (C.A.) Cb.: 501
b.
Strict Construction
c.
Doctrine of Fundamental Breach
Karsales (Harrow) Ltd. v. Wallis, [1956] 2 All E.R. 866 (CA.) Cb.: 506
Photo Production Ltd. v. SecuricorTransport Ltd., [1980] 3 All E.R. 556 (H.L.) Cb.: 508
Hunter Engineering Co. Inc. v. Syncrude Canada Ltd. (1989), 57 D.LR. (4th) 321 (S.C.C.) Cb.: 514
d.
Fundamental Breach/Unconscionability Post-Hunter
Eraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997), 148 D.L.R. (4th) 496 (Ont. C.A.) Cb.
528
Solway v. Davis Moving & Storage Inc. (2002), 62 O.R. (3d) 522 (C.A.) Cb.: 533
Plas-Tex Canada Ltd. v. Dow Chemical ofCanada Ltd. (2004), 245 D.L.R. (4th) 650 (Alta. C.A.) Cb.: 538
CONTRACTS INDUCED BY MISREPRESENTATION
A.
Meaning of Misrepresentation
Redgrave v. Hurd (1881), 20 Ch. D. 1 (C.A.) Cb.: 355
Smith v. Land and House Property Corp. (1884), 28 Ch. D. 7 (CA.) Cb.: 359
B.
Remedies
a.
Fraudulent Misrepresentation
b.
Negligent Misrepresentation, supra, 2 C
c.
Innocent Misrepresentation
Whittington v. Seale-Hayne (1900), 82 L.TT 49 (Ch. D.) S.M.: 90
C.
Bars to Rescission
a.
Affirmation - Lapse of Time
Leaf v. International Galleries, [1950] 2 K.B. 86 (C.A.) Cb.: 378
b.
Restitution Impossible
60
Kupchak v. Dayson Holdings Ltd. (1965), 53 D.L.R. (2d) 482 (B.C.CA.) Cb.: 363
c.
Executed Contract
Ennis v. Klassen, [1990] 4 W.W.R. 609 (Man. CA.) S.M.: 95
d. Third Party Rights
e.
6.
Exemption Clauses
CONTRACTS CONCLUDED UNDER MISTAKE
A.
Mistakes in Assumptions
a.
Common Law
Bellv. Lever Bros. Ltd., [1932] A.C. 161 (H.L.) Cb.: 560
McRae v. Commonwealth Disposals Commission, supra, 3 A Cb.: 565
b.
Equity
Solle v. Butcher, [1950] 1 K.B. 671 (C.A.) Cb.: 571
The Great Peace, [2002] 4 All E.R. 689 (CA.) Cb.: 574
Miller Paving Ltd. v. B. Gottardo Construction Ltd. (2007), 86 O.R. (3d) 161 (C.A.) Cb.: 579
B.
Mistakes as to Contractual Terms
a.
Mutual Mistakes
Staiman Steel Ltd. v. Commercial &Home Builders Ltd. (1976), 13 O.R. (2d) 315 (H.C.) Cb.: 544
b. Mistakes Known to Other Party
Smith v. Hughes (1871), L.R. 6 Q.B. 597 Cb.: 546
C
Mistaken Tenders
R. v. Ron Engineering &Construction (Eastern) Ltd., supra, 1 Aa (iii) Cb.: 554
D.
Rectification
Bercovici v. Palmer (1966), 59 D.L.R. (2d) 513 (Sask. Q.B. and C.A.) Cb.: 601, 603
Sylvan Lake Golf& Tennis Club Ltd. v. Performance Industries Ltd. (2002), 209 D.L.R. (4th) 318 (S.C.C.) Cb.: 604
E.
Mistakes and Third Parties
a.
Mistaken Identity
Shogun Finance Ltd. v. Hudson, [2004] 1 All E.R. 215 (H.L.) Cb.: 583
b. Documents Mistakenly Signed
Saunders v. Anglia Bldg. Society, [1971] A.C. 1004 (H.L.) Cb.: 591
61
Marvco Color Research Ltd. v. Harris (1982), 141 D.LR. (3d) 577 (S.C.C) Cb.: 593
FRUSTRATION OF CONTRACTS
A.
Scope of Doctrine
Paradine v. Jane (1647), 82 E.R. 897 (K.B.) Cb.: 620
Taylorv. Caldwell(1863), 122 E.R. 695 (Q.B.) Cb.: 621
ClaudeNeon GeneralAdvertising Ltd.v. Sing, [1942] 1 D.L.R. 26 (N.S.S.C) Cb.: 626
Davis Contractors Ltd. v. Fareham U.D.C., [1956] A.C. 696 (H.L.) Cb.: 628
The Sea Angel, [2007] EWCA Civ 547:
B.
Self-Induced Frustration
Maritime National Fish Ltd. v. Ocean TrawlersLtd., [1935] A.C. 524 (P.C) (N.S.) Cb.: 648
C.
Contracts Involving Land
Capital Quality Homes Ltd. v. Colwyn Construction Ltd. (1975), 61 D.LR. (3d) 385 (Ont. CA.) Cb.: 632
Victoria Wood Development Corp. v. Ondrey(1977), 14 O.R. (2d) 723 (H.C), aff'd (1978), 92 D.L.R. (3d) 229
(CA.) Cb.: 635
KBKNo. 138 Ventures Ltd. v. Canada Safeway Ltd. (2000), 185 D.LR. (4,h) 650 (B.C.C.A.) Cb.: 636
D.
Effects of Doctrine
Frustrated Contracts Act, R.S.A. 2000, c. F-27 S.M.: 105
62
LAW 402: CONTRACTS 2009-2010
SECTION THREE
The course is allotted 5 credit hours. It is taught in both semesters. There are two classes per week. Each
class is 75 minutes in duration.
INSTRUCTOR
Nicholas Rafferty
Office: 4310
Phone: 403-220-7325
E-mail: rafferty® ucalgary.ca
READING MATERIALS
The two sets of materials required for the course are Ben-lshai and Percy, Contracts: Cases and
Commentaries (8th ed. 2009), which is available from the University Bookstore, and Rafferty, Contracts:
Supplementary Materials (2009), which is available on Blackboard.
There are also various textbooks on Contracts to which students may find it useful to refer. The four major
Canadian works on the market are:
Fridman, The Lawof Contract in Canada (5,h ed. 2006)
McCamus, The Law of Contracts (2005)
Swan, Canadian ContractLaw(2nd ed. 2009)
Waddams, The Law of Contracts (5,h ed. 2005)
English textbooks in this area include:
Beale, ed., Chitty on Contracts (30th ed. 2008) esp. Volume 1
Furmston, Cheshire, Fifoot &Furmston's Law of Contract(15th ed. 2006)
Furmston, ed.,The Law of Contract (3rd ed. 2007)
Smith, Atiyah's Introduction to the Law of Contract (6th ed. 2005)
Peel, Treitel: The Law of Contract (12* ed. 2007)
Copies ofthese Canadian and English textbooks can be found on reserve in the Law Library. Some students
mayfind itconvenient to have their own copyofa textbook and to that end a number of copies of McCamus
are available in the University Bookstore.
TOPICS
Thetopics covered in the course are listed on thesyllabus. Over the year, however, additions to, or deletions
from, that list may have to be made where circumstances warrant.
EVALUATION
The final grade in Contracts will be based upon a student's performance in the following two components:
(a)
Mid-Session Examination
This examination will comprise 30% of the final grade.
(b)
Final Examination
This examination will comprise 70% of the final grade. If, however, a student receives a
higher grade on the final examination than on the mid-session examination, then the final
examination will comprise 90% of the final grade for that student and the mid-session
examination will comprise 10% of that student's final grade.
63
Each examination in the course will not exceed three hours in duration, and may well occupy less time, and
will be CLOSED BOOK. A copy of the syllabus and any relevant statutes will be provided.
METHOD OF ARRIVING AT FINAL COURSE GRADE
Each examination and each component ofthe advocacy assignment will be graded using one of the following
designations:
A+, A, A-, B+, B, B-, C+,
C,
C-, D+, D, D-, F+,
F
For the purpose of determining the final course grades, each designation will be assigned the following
numerical value:
A+ =:13
B+ = 10
C+ ==7
D+ =•4
F+ = 1
A =
B =
C =
D =
F =
A-=
B- =
C- =
D- =
12
9
6
3
0
11
8
5
2
will then be ascertained as follows:
A+
=
A
s
A-
=
B+
B
BC+
C
C- .
D+
D
F
=
=
=
=
=
=
=
=
=
12.50
11.50
10.50
9.50
8.50
7.50
6.50
5.50
4.50
3.50
1.50
0.00
-
13.00
12.49
11.49
10.49
-
9.49
8.49
7.49
6.49
5.49
4.49
3.49
-
1.49
Thus, as an example, a student who obtained an Aon the mid-session examination and a B on the final
examination would receive a final grade of B+ (12x 0.3 (3.6) plus 9 x 0.7 (6.3) = 9.9 = B+). A student who
obtained a B on the mid-session examination and an A on the final examination would receive a final grade
of Asince the final examination for that student would comprise 90% of the final grade (9 x 0.1 (0.9) plus 12
x 0.9(10.8) = 11.7 = A). Had the final examination for that student beenworth the normal 70%, thatstudent
would have received a grade of A- (9 x 0.3 (2.7) plus 12 x 0.7 (8.4) = 11.1= A-).
Note that, in rare circumstances, final grades mayhave to be changed from those that would be awarded
under the above system in order to meetthe Faculty's grading requirements. Any suchchanges will be made
across the board on a consistent mathematical-basis.
64
LAW 402: CONTRACTS
SECTION THREE
SYLLABUS 2009-2010
Nicholas Rafferty
References are either to Ben-lshai and Percy, Contracts: Cases and Commentaries (8th ed. 2009) (Cb.) or to Rafferty,
Contracts: Supplementary Materials (2009) (S.M.).
1.
ESSENTIAL ELEMENTS OF CONTRACTS
A.
Agreement
a.
Offer
(i)
Definition
Canadian Dyers Assn. Ltd. v. Burton (1920), 47 O.L.R. 259 (H.C.) Cb.: 18
(ii) Offer or Invitation to Treat
Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q.B. 256 (C.A.) Cb.: 25
Leonard v. Pepsico Inc., 88 F. Supp. 2d 116 (S.D.N.Y. 1999) S.M.: 1
Pharmaceutical Society ofGreat Britain v. Boots Cash Chemists (Southern) Ltd., [1953] 1 Q B 401 (C A)
Cb.: 20
R. v. Dawood, [1976] 1 W.W.R. 262 (Alta. C.A.) S.M.: 8
(iii) Auctions and Tenders
R. v. Ron Engineering &Construction (Eastern) Ltd. (1981), 119 D.L.R. (3d) 267 (S.C.C.) Cb.: 35
Chinook Aggregates Ltd. v. District ofAbbotsford, [1990] 1 W.W.R. 624 (B.C.C.A.) S.M.: 11
M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd. (1999), 170 D.L.R. (4th) 577 (S.C.C.) Cb.: 38
b.
Communication of Offer
Williams v. Carwardine (1833), 110 E.R. 590 (K.B.) Cb.: 50
R. v. Clarke (1927), 40 C.L.R. 227 (Aus. H.C.) Cb.: 51
Carlill v. Carbolic Smoke Ball Co., supra, 1 A a (ii) Cb.: 25
Blair v. Western Mutual Benefit Assn., [1972] 4 W.W.R. 284 (B.C.C.A.) Cb.: 47
c.
Acceptance
(i)
By Words or Conduct
St. John Tug Boat Co. v. Irving Refinery Ltd., [1964] S.C.R. 614 Cb.: 75
(ii) Silence as Acceptance
Felthouse v. Bindley (1862), 142 E.R. 1037 (Ex. Ch.) Cb.: 72
(iii) Acceptance, Courier-Offer and Request for Information
Livingstone v. Evans, [1925] 4 D.L.R. 769 (Alta. S.C.) Cb.: 54
Butler Machine Tool Co. v. Ex-Cell-0 Corp., [1979] 1 All E.R. 965 (C.A.) Cb.: 56
Tywood Industries Ltd. v. St. Anne-Nackawic Pulp &Paper Co. Ltd. (1979), 100 D.L.R. (3d) 374 (Ont. H.C.)
Cb.: 58
(iv) Unilateral and Bilateral Contracts
Carlill v. Carbolic Smoke Ball Co., supra, 1 A a (ii) Cb.: 25
Williams v. Carwardine, supra, 1 A b Cb.: 50
Dawson v. Helicopter Exploration Co., [1955] 5 D.L.R. 404 (S.C.C.) Cb.: 66
65
d.
Communication of Acceptance
(i) Necessary to Form Contract
(ii) Waiver of Requirement
Carlill v. Carbolic Smoke BallCo., supra, 1 A a (ii) Cb.: 25
(iii) Mode of Communication
Eliason v. Henshaw (1819), 4 Wheat. 225 Cb.: 79
Trans-Pacific Trading v. Rayonier Canada Ltd., [1998] 9 W.W.R. 266 (B.C.C.A.), per Rowles J.A. S.M.: 17
(iv) Time of Acceptance - Postal Rules
Henthorn v. Fraser, [1892] 2 Ch. 27 (C.A.) S.M.: 21
HolwellSecurities v. Hughes, [1974] 1 All E.R. 161 (C.A.) Cb.: 85
Trans-Pacific Trading v. Rayonier Canada Ltd., supra, 1 A d (iii), per Southin J.A. S.M.: 17
Brinkibon Ltd. v. Stahag Stahl, etc., [1982] 1 All E.R. 293 (H.L.) Cb.: 88
e.
Termination of Offer
(i) Rejection or Counter-Offer, supra, 1 A c (iii)
(ii) Revocation
Dickinson v. Dodds (1876), 2 Ch. D. 463 (C.A.) Cb.: 97
(iii) Option
Mountford v. Scott, [1975] 1 All E.R. 198 (C.A.) S.M.: 25
(iv) Revocation of Unilateral Offer
Petterson v. Pattberg, 161 N.E. 428 (N.Y. Ct. Apps. 1928) S.M.: 27
Errington v. Errington and Woods, [1952] 1 K.B. 290 (C.A.) Cb.: 102
(v) Lapse of Time
Manchester Diocesan Council for Education v. Commercial and General Investments Ltd., [1969] 3 All E.R.
1593 (Ch. D.)S.M.:31
Barrick v. Clark, [1950] 4 D.L.R. 529 (S.C.C.) Cb.: 103
(vi) Conditional Offer
Financings Ltd. v. Stimson, [1962] 3 All E.R. 386 (C.A.) S.M.: 36
(vii) Death
f.
Certainty
(i) Ambiguous, Vague or Missing Terms
R. v. CAE Industries Ltd., [1985] 5 W.W.R. 481 (Fed. C.A.) Cb.: 114
May and Butcher Ltd. v. The King, [1934] 2 K.B. 17 (H.L.) Cb.: 119
Hillasand Co. Ltd. v. Arcos Ltd. [1932] All E.R. Rep. 494 (H.L.) Cb.: 122
Foley v. Classique Coaches Ltd., [1934] 2 K.B. 1 (C.A.) Cb.: 126
Sudbrook Trading Estate Ltd. v. Eggleton, [1982] 3 All E.R. 1 (H.L.) Cb.: 129 (note)
(ii) Agreements to Negotiate
Wellington City Council v. Body Corporate 51702 (Wellington), [2002] 3 N.Z.L.R. 486 (C.A.) Cb.: 138
Empress Towers Ltd. v. Bank of Nova Scotia (1990), 73 (4th) 400 (B.C.C.A.) Cb.: 131
Mannpar Enterprises Ltd. v. Canada (1999), 67 B.C.L.R. (3d) 64 (C.A.) Cb.: 134
66
(iii) Agreements with Formal Contract to Follow
Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. (4th) 97 (Ont. C.A.) Cb.: 145
g.
Conditional Agreements
(i)
Condition Precedent to Existence or Performance
Wiebe v. Bobsien, [1985] 1 W.W.R. 644 (B.C.S.C), aff'd [1986] 4 W.W.R. 270 (B.C.C.A )
Cb.: 321 & 327
(ii) Parties' Obligations
Dynamic Transport Ltd. v. O.K. Detailing Ltd. (1978), 85 D.L.R. (3d) 19 (S.C.C.) Cb.: 332
Eastwalsh Homes Ltd. v. Anatal Developments Ltd. (1993), 100 D.L.R. (4th) 469 (Ont. C.A.) Cb.: 335
(iii) Unilateral Waiver
Turney v. Zhilka, [1959] S.C.R. 578 Cb.: 339
Beauchamp v. Beauchamp (1972), 32 D.L.R. (3d) 693 (Ont. C.A.) Cb.: 340
Barnett v. Harrison, [1976] 2 S.C.R. 531 Cb.: 341
B.
Intention to Create Legal Relations
Balfourv. Balfour, [1919] 2 K.B. 571 (C.A.) Cb.: 243
C.
Consideration and Reliance
a.
Definition of Consideration
Brantford General Hospital Foundation v. Marquis Estate (2003), 67 O.R. (3d) 432 (S.C.J.) Cb.: 161
b.
Past Consideration
Lampleigh v. Brathwait (1615), 80 E.R. 255 (K.B.) Cb.: 168
c.
Adequacy of Consideration
d.
Forbearance
B. (D.C.) v. Arkin (1996), 138 D.L.R. (4th) 309 (Man. Q.B.), affd [1996] 10 W.W.R. 689 (C.A.) S.M.: 39
Royal Bank of Canada v. Kiska, [1967] 2 O.R. 379 (C.A.) S.M.: 42
e.
Public Duty
f.
Duty Owed to Third Party
g.
Duty Owed to Other Contracting Party
Stilk v. Myrick (1809), 170 E.R. 1168 (Nisi Prius) Cb.: 17£
Gilbert Steel Ltd. v. University Construction Ltd. (1976), 12 O.R. (2d) 19 (C.A.) Cb.: 178
Williams v. Roffey Bros. &Nicholls (Contractors) Ltd., [1990] 1 All E.R. 512 (C.A.) Cb.: 182
Greater Fredericton Airport Authority Inc. v. NAV Canada (2008), 290 D.L.R. {4th) 405 (N.B.C.A.) Cb.: 186 &666
(i) Discharge of Duty by Part Performance
Foakes v. Beer (1884), 9 App. Cas. 605 (H.L.) Cb.: 192
Re Selectmove Ltd., [1995] 1 W.L.R. 474 (C.A.) Cb.: 195
Judicature Act, R.S.A. 2000, c. J-2, s. 13(1) Cb.: 200
67
(ii) Discharge of Duty by Substituted Performance
D. &C. Builders Ltd. v. Rees, [1966] 2 Q.B. 617 (C.A.) Cb.: 200 (note)
h.
Promises under Seal
Royal Bank of Canada v. Kiska, supra, 1 C d Cb.: 252
i.
Promissory Estoppel and Waiver
(i)
General
Hughes v. Metropolitan Railway Co. (1877), 2 App. Cas. 439 (H.L.) Cb.: 201
Central London Property TrustLtd. v. High Trees House Ltd., [1947] 1 K.B. 130 Cb.: 203
(ii) Requisite Promise
John Burrows Ltd. v. Subsurface Surveys Ltd. (1968), 68 D.L.R. (2d) 354 (S.C.C.) Cb.: 205
(iii) Equitable Nature of Doctrine
D. <& C. Builders Ltd. v. Rees, supra, 1 C g (ii) Cb.: 208
(iv) Suspension or Extinguishment of Rights - Retraction and Reliance
Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co. (1994), 115 D.L.R. (4th) 478
(S.C.C.) Cb.: 211
International Knitwear Architects Inc. v. Kabob Investments Ltd. (1995), 17 B.C.L.R. (3d) 125 (C.A.) Cb.: 215
The Post Chaser, [1982] 1 All E.R. 19 (Q.B.D.) Cb.: 220
(v) Variation of Existing or Creation of New Relationship
Combe v. Combe, [1951] 2 K.B. 215 (C.A.) Cb.: 224
Robichaud v. Caisse Populaire de Pokemouche Ltee. (1990), 69 D.L.R. (4,h) 589 (N.B.C.A.) Cb.: 229
Sloan v. Union Oil Co. of Canada, [1955] 4 D.L.R. 664 (B.C.S.C.) S.M.: 46
Komerup v. Raytheon Canada Ltd. (2008), 294 D.L.R. (4lh) 162 (B.C.C.A.) S.M.: 48
Waltons Stores (Interstate) Pty. Ltd. v. Maher (1988), 62 A.L.J.R. 110 (H.C.) Cb.: 230
M. (N.) v. A. (A.T.) (2003), 13 B.C.L.R. (4th) 73 (C.A.) Cb.: 239
Privity
a.
Enforcement of Contracts by Third Party Beneficiaries
Beswick v. Beswick, [1966] 1 Ch. 538 (C.A.), affd [1968] A.C. 58 (H.L.) Cb.: 283 & 284
Jackson v. Horizon Holidays Ltd., [1975] 3 All E.R. 92 (C.A.) S.M.: 52
Woodar Investment Development Ltd. v. Wimpey Construction Co. Ltd., [1980] 1 All E.R. 571 (H.L.) S.M.: 55
b.
Reliance on Contracts by Third Party Beneficiaries for Defensive Purposes
(i)
Exemption Clauses
N.Z. Shipping Co. Ltd. v. A.M. Satterthwaite &Co. Ltd., [1974] 1 All E.R. 1015 (P.C.) (N.Z.) Cb.: 293
London Drugs Ltd. v. Kuehne &NageljnternationalLtd., [1993] 1 W.W.R. 1 (S.C.C.) Cb.: 298
Edgeworth Construction Ltd. v. N.D. Lea &Associates Ltd. (1993), 107 D.L.R. (4th) 169 (S.C.C.) Cb.: 308
(ii) Waivers of Subrogation
FraserRiver Pile &Dredge Ltd. v. Can-Dive Services Ltd. (1999), 176 D.L.R. (4th) 257 (S.C.C.) Cb.: 310
c.
Collateral Contracts
Murray v. Sperry Rand Corp. (1979), 23 O.R. (2d) 456 (H.C.) S.M.: 56
Hallmark Pool Corporation v. Storey (1983), 144 D.L.R. (3d) 56 (N.B.C.A.) S.M.: 60
68
:.
CONTRACTUAL TERMS
A.
Implied Terms
Machtingerv. HOJ Industries Ltd. (1992), 91 D.L.R. (4th) 491 (S.C.C.) Cb.: 463
Chinook Aggregates Ltd. v. District of Abbotsford, supra, 1 A a (iii) S.M.: 11
MJB Enterprises Ltd. v. Defence Construction (1951) Ltd., supra, 1 A a (iii) Cb.: 38
B.
Express Terms
a.
Parol Evidence Rule
Hawrish v. Bank of Montreal (1969), 2 D.L.R. (3d) 600 (S.C.C.) Cb.: 412
Gallen v. Allstate Grain Co. (1984), 53 B.C.L.R. 38 (C.A.) Cb.: 422
Ahone v. Holloway (1988), 30 B.C.L.R. (2d) 368 (C.A.) S.M.: 67
b.
Mere Representations or Terms of Contract
Heilbut, Symons &Co. v. Buckleton, [1913] A.C. 30 (H.L.) Cb.: 371
Dick Bentley Productions Ltd. v. Harold Smith (Motors) Ltd., [1965] 2 All E.R. 65 (C.A.) Cb.: 376
C.
Interrelationship of Contract and Tort
Esso Petroleum Co. v. Mardon, [1976] Q.B. 801 (C.A.) S.M.: 71
D.
Classification of Terms - Right to Terminate for Breach
Hong Kong Fir Shipping Co. Ltd. v. Kawasaki Kisen Kaisha Ltd., [1962] 2 Q.B. 26 (C.A.) Cb.: 436
Krawchuk v. Ulrychova, [1996] 8 W.W.R. 183 (Alta. Prov. Ct.) S.M.: 74
DAMAGES FOR BREACH OF CONTRACT
A.
Measure of Damages: The Interests Protected
McRae v. Commonwealth Disposals Commission (1950), 84 C.L.R. 377 (Aus. H.C.) Cb.: 793
Bowlay Logging Ltd. v. DomtarLtd. (1982), 135 D.L.R. (3d) 179 (B.C.C.A.) Cb.: 797
Esso Petroleum Co. v. Mardon, supra, 2 C S.M.: 71
B.
Certainty
(i)
Loss of a Chance
Chaplin v. Hicks, [1911] 2 K.B. 786 (C.A.) Cb.: 814
C.
Causation
Hodgkinson v. Simms, [1994] 3^S.C.R. 377 Cb.: 850
D.
Remoteness of Damage
Hadley v. Baxendale (1854), 156 E.R. 145 Cb.: 858
Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd., [1949] 2 K.B. 528 (C.A.) Cb.: 861
The Heron II, [1969] 1 A.C. 350 (H.L.) Cb.: 868
E.
Intangible Losses
Fidler v. Sun Life Assurance Co. of Canada (2006), 271 D.L.R. (4th) 1 (S.C.C.) S.M.: 78
69
6
F.
Mitigation
Asamara Oil Corp. v. Sea OH & General Corp., [1979] 1 S.C.R. 633 Cb.: 871
G.
Time of Measurement of Damages
Semelhago v. Paramadevan, [1996] 2 S.C.R. 415 Cb.: 879
4.
STANDARD FORM CONTRACTS AND EXCLUSION CLAUSES
A.
General Principles of Contractual Interpretation
Scott v. Wawanesa Mutual Insurance Co. (1989), 59 D.L.R. (4th) 660 (S.C.C.) Cb.: 468
B.
Judicial Control of Standard Form Contracts and Exclusion Clauses
a.
Incorporation
(i)
Unsigned Documents
Thornton v. Shoe Lane Parking Ltd., [1971] 2 Q.B. 163 (C.A.) Cb.: 478
Interfoto Picture Library Ltd. v. Stiletto Visual Programmes Ltd., [1988] 1 All E.R. 348 (C.A.) Cb.: 483
McCutcheon v. David MacBrayne Ltd., [1964] 1 All E.R. 430 (H.L.) Cb.: 488
(ii) Signed Documents
Tilden Rent-A-Car Co. v. Clendenning (1978), 18 O.R. (2d) 601 (C.A.) Cb.: 492
Karroll v. Silver Star Mountain Resorts Ltd. (1988), 35 B.C.L.R. (2d) 160 (S.C.) Cb.: 496
978011 Ontario Ltd. v. Cornell Engineering Co. (2001), 53 O.R. (3d) 783 (C.A.) Cb.: 501 (note)
b.
Strict Construction
c.
Doctrine of Fundamental Breach
Karsales (Harrow) Ltd. v. Wallis, [1956] 2 All E.R. 866 (C.A.) Cb.: 506
Photo Production Ltd. v. Securicor Transport Ltd., [1980] 3 All E.R. 556 (H.L.) Cb.: 508
Hunter Engineering Co. Inc. v. Syncrude Canada Ltd. (1989), 57 D.L.R. (4th) 321 (S.C.C.) Cb.: 514
d.
Fundamental Breach/Unconscionability Post-Hunter
FraserJewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997), 148 D.L.R. (4th) 496 (Ont. C.A.) Cb.: 528
Solway v. Davis Moving &Storage Inc. (2002), 62 O.R. (3d) 522 (C.A.) Cb.: 533
Plas-Tex Canada Ltd. v. Dow Chemical of Canada Ltd. (2004), 245 D.L.R. (4th) 650 (Alta. C.A.) Cb.: 538
5.
CONTRACTS INDUCED BY MISREPRESENTATION
A.
Meaning of Misrepresentation
Smith v. Land and House Property Corp. (1884), 28 Ch. D. 7 (C.A.) Cb.: 359
Redgrave v. Hurd (1881), 20 Ch. D. 1 (C.A.) Cb.: 355
B.
Remedies
a.
Fraudulent Misrepresentation
b.
Negligent Misrepresentation, supra, 2 C
70
7
c.
Innocent Misrepresentation
Whittington v. Seale-Hayne (1900), 82 L.T. 49 (Ch. D.) S.M.: 90
C.
Bars to Rescission
a.
Affirmation - Lapse of Time
Leafv. International Galleries, [1950] 2 K.B. 86 (C.A.) Cb.: 378
b.
Restitution Impossible
Kupchak v. Dayson Holdings Ltd. (1965), 53 D.L.R. (2d) 482 (B.C.C.A.) Cb.: 363
c.
Executed Contract
Ennis v. Klassen, [1990] 4 W.W.R. 609 (Man. C.A.) S.M.: 95
6.
d.
Third Party Rights
e.
Exemption Clauses
CONTRACTS CONCLUDED UNDER MISTAKE
A.
Mistakes in Assumptions
a.
Common Law
Bell v. Lever Bros. Ltd., [1932] A.C. 161 (H.L.) Cb.: 560
McRae v. Commonwealth Disposals Commission, supra, 3 ACb.: 565
b.
Equity
Solle v. Butcher, [1950] 1 K.B. 671 (C.A.) Cb.: 571
The Great Peace, [2002] 4 All E.R. 689 (C.A.) Cb.: 574
Miller Paving Ltd. v. B. Gottardo Construction Ltd. (2007), 86 O.R. (3d) 161 (C.A.) Cb.: 579
B.
Mistakes as to Contractual Terms
a.
Mutual Mistakes
Staiman Steel Ltd. v. Commercial &Home Builders Ltd. (1976), 13 O.R. (2d) 315 (H.C.) Cb.: 544
b. Mistakes Known to Other Party
Smith v. Hughes (1871)VL.R. 6 Q.B. 597 Cb.: 546
C.
Mistaken Tenders
R. v. Ron Engineering &Construction (Eastern) Ltd., supra, 1Aa (iii) Cb.: 554
71
D.
Rectification
Bercoviciv. Palmer (1966), 59 D.L.R. (2d) 513 (Sask. Q.B. and C.A.) Cb.: 601 & 603
Sylvan Lake Golf &Tennis Club Ltd. v. Performance Industries Ltd. (2002), 209 D.L.R. (4th) 318 (S.C.C.) Cb.: 604
E.
Mistakes and Third Parties
a.
Mistaken Identity
Shogun Finance Ltd. v. Hudson, [2004] 1 All E.R. 215 (H.L.) Cb.: 583
b.
Documents Mistakenly Signed
Saunders v. Anglla Bldg. Society, [1971] A.C. 1004 (H.L.) Cb.: 591
Marvco Color Research Ltd. v. Harris (1982). 141 D.L.R. (3d) 577 (S.C.C.) Cb.: 593
7.
FRUSTRATION OF CONTRACTS
A.
Scope of Doctrine
Paradine v. Jane (1647). 82 E.R. 897 (K.B.) Cb.: 620
Taylor v. Caldwell (1863), 122 E.R. 695 (Q.B.) Cb.: 621
Claude Neon General Advertising Ltd.v. Sing, [1942] 1 D.L.R. 26 (N.S.S.C.) Cb.: 626
Daws Contractors Ltd. v. Fareham U.D.C., [1956] A.C. 696 (H.L.) Cb.: 628
The Sea Angel, [2007] EWCA Civ 547 Cb.: 642
B.
Self-Induced Frustration
Maritime National Fish Ltd. v. Ocean Trawlers Ltd., [1935] A.C. 524 (P.C.) (N.S.) Cb.: 648
C.
Contracts Involving Land
Capital Quality Homes Ltd. v. Colwyn Construction Ltd. (1975), 61 D.L.R. (3d) 385 (Ont. C.A.) Cb.: 632
Victoria Wood Development Corp. v. Ondrey (1977), 14 O.R. (2d) 723 (H.C). affd (1978), 92 D.L.R. (3d) 229 (C.A.)
Cb.: 635
KBK No. 138 Ventures Ltd. v. Canada Safeway Ltd. (2000), 185 D.L.R. (4th) 650 (B.C.C.A.) Cb.: 636
D.
Effects of Doctrine
Frustrated Contracts Act, R.S.A. 2000, c. F-27 S.M.: 105
Z:\My DocumentsVOutlines & Syllabus\402 • Contracts Syllabus.wpd
72
LAIjljBHEEjLEGISLATION, ADMINISTRATION AND POLICY
COURSE OUTLINE - FALL 2009
INSTRUCTORS:
Section 01: Prof. Shaun Fluker
Section 02: Prof. Pat Knoll
Section 03: Prof. Arlene Kwasniak
MFH 4340
Phone: 220-4939
MFH 4305
Phone: 220-7327
MFH 4312
Phone: 220-2638
Email: sfluker@ucalgary.ca
Email: pknoll@ucalgary.ca
Email: akwasnia@ucalgary.ca
COURSE DESCRIPTION:
An examination of the role of legislation in the legal system using the vehicle of selected articles, cases, and
problems. We will examine the Canadian legislative process; the drafting process; the implementation of
statutory provisions and delegated legislation; statutory interpretation.
Skills practised will include: formulation and presentation of arguments, legislative reading, and analysis, legal
writing in the field of statutory construction, policy analysis, and legislative drafting.
REQUIRED MATERIALS:
Materials for Law 403: Legislation, Administration &Policy, Revised 2009 Edition.
COURSE OBJECTIVES AND RELATIONSHIPTO EVALUATION:
1.
Students will demonstrate, in oral argumentation and writing, their skills in reading and
understanding legislation by analyzing specific problems. Opportunities to develop and demonstrate
these skills will occur in:
2.
a.
class lectures and discussions;
b.
questions on thefinal examination (evaluated).
Students will demonstrate their understanding of the legislative process, the implementation of
legislation, statutory instruments, policy analysis, and policy-making. Opportunities to develop and
demonstrate this understanding will occurin:
a.
b.
c.
3.
class lectures, discussions, exercizes, and workshops;
translating policy instructions into legislation in the drafting exercise (evaluated);
questions on the final examination (evaluated).
Students will demonstrate their skill in drafting legal instruments. Criteria for an acceptable
demonstration will include:
a.
use of the proper form;
b.
imaginative and accurate methods of implementing the policy choices;
c.
d.
avoidance of ambiguity;
economyof language.
Opportunities to develop and demonstrateihese skills may occur in:
a.
class lectures and discussions;
b.
c
practice drafting problems;
drafting exercise (evaluated);
d.
questions on the final examination (evaluated).
73
EVALUATION:
Evaluation in this course will be based on two components.
1.
Drafting Exercise (30%): (Objectives 2 &3)
The drafting exercize will be handed out and will be due in November on the dates to be
announced.
If this exercise is handed in after the date and time it Is due, it will be reduced in grade by one level
(e.g. from a Bto a B-) for each day orpart thereof it is late, unless a personal or medical excuse is
delivered to and accepted by the instructor (in advance if possible).
2.
Final Exam (70%): (Objectives 1, 2, and 3) Exam date and time to be announced.
The examination will be open-book except that no library materials may be brought into the
examination room and no sample exams or sample answers may be brought into the
examination room except those contained In the course Materials or provided by the Instructor.
The numerical grades will then be combined proportionately, and the final course grades will be
determined as follows:
The assignment and each question on the examination will be graded using one ofthe followinq
designations:
A+
=
4.3
C+
=
2.3
A
=
4.0
c
=
2.0
A
- =
3.7
C-
=
1.7
3.3
D+
=
1.3
B+
=
B
=
3.0
D
=
1.0
B - =
2.7
F
=
0.0
The numerical grades will then be combined proportionately, and the final course grades will be
determined as follows:
A+
A
A B+
B
B -
=
=
=
=
=
4.01 - 4.30
3.85-4.00
3.50-3.84
3.15-3.49
2.85-3.14
2.50-2.84
c+ =
2.15-•2.49
C
=
1.85-•2.14
C-
=
1.50- 1.84
D+ =
1.15- 1.49
D
=
F
=
0.50- 1.14
0.00- 0.49
FEEDBACK:
Comments will be made on each individual's drafting exercise and final examination.
74
LAW 403: LEGISLATION, ADMINISTRATION, &POLICY CLASS PLAN 2009
Professor S. Fluker - Section 01
Professor P. Knoll- Section 02
Professor A. Kwasniak - Section 03
Monday and Wednesday, 3:00- 4:15
Weds., Sept. 9
Introduction, Sources of Law and the Court System
Mon., Sept. 14
Policy Choice and Limitations
READINGS IN MATERIALS
1-15: Excerpts from Public Law and Legislation (PLL) and
Department ofJustice web publication
1
''
16-27: Assessing, Selecting, and Implementing Instruments for
Government Action, Tardi - Role of PolicyandPolic^S
Weds., Sept. 16
Sgisiafan""*tBfltetaBon and Federal Subordinate
Mon., Sept. 21
fnTif™?!i
^'m'tS0n De,e9ated Authority, Problem"
on Delegated Authority
Weds., Sept. 23
Discretion problem
Mon., Sept. 28
Counsel)0""* ^ Pagan°(Chief LeSis,ative"
Weds, Sept. 30
Introduction to Drafting
Mon., Oct. 5
Drafting - Organization &Legislate Spnwoe
Weds., Oct. 7
Drafting - Definitions
Mon., Oct. 12
No class- University closed (Thanksgiving)
Weds., Oct. 14
Draftin9 "ArChalc Ration, Paragraphing
Mon., Oct. 19
introduction to Legislative (Statutory) Interpretation
Weds., Oct. 21
Mon., Oct. 26
Weds., Oct. 28
Mon., Nov. 2
Weds., Nov. 4
Introduction (continued)
General Approach to Interpretation
General Approach (continued)
General Approach (continued)
Drafting assignment handed out
SSiW(continued) &Specific Aids: Context
28-39: The Federal Statute Making Process, Federal Leaislativp
Class exercise
40-61: Aioerta statutory and regulatory materials, Joint class"
66-91: Organization, Conventions. SMp Mam.a. r*Z^
92-1 nn l oeei»n^ K»
_„. ...
92-100
&assigned Manual• provisions
101-107 &assigned Manual provisions
-
108-112 &assigned Manual provisions
lltl?LM^ke,^P of steles, problem examples general'
approach, Frankfurter, Intention of Legislature
123-178: Payne, Willis, Sullivan
179-198: Rizzo, Bell Express, TTC
199-210: Zacks, Kravetsky, Cotter
*ii*zk united Taxi, Alta. C.A. and S.C.C., Merman, problems
227-236: Wigglesworth, Interpretation Acts, Nanaimo
Mon., Nov. 9
Wed., Nov. H
Mon., Nov, 16
No class - University closed (Reading Dav)
Drafting assignment due
External Context: Legal &Common i aw
WedS'Nov-1B
Nov. 23
Weds,, Nov. 25
Mon., Nov. 30
Weds., Dec. 2
237-249: Grinil Strahl, problem, Oakes
External Context: a ^ u ^ .
Presumptions: Retroactivity, Retrospectivity, &Vested'
Retroactivity etc. (continued)
^resumptions: Against Substantial Alteration
250-261: History, Pqpavic, in pari materia, Fisher
?m2'!79: ^ S'94> SU"iVan-HeVWOOd Mor9entaler. Miriminnl
280-306. Commeni, Manaavia, Dikranian, Hoyallns., Stevens'
307-319: Angus, Brosseau, problems
320-335: Wener, Robinson, Paul, problem
Review
75
SHI UNIVERSITY OF
CALGARY
FACULTY OF LAW
LAW 403:
LEGISLATION, ADMINISTRATION AND POLICY
CASES AND MATERIALS
FIuker/Knoll/Kwasniak
Fall 2009
Preparedfor the exclusive use ofstudents in the Faculty ofLaw, University ofCalgary
76
TABLE OF CONTENTS
PART I: INTRODUCTION TO LEGISLATION
.1
A. SOURCES OF LAW, THE ROLE OF LEGISLATION,
AND STRUCTURE
STRUCTURE OF
GISLATION, AND
OF COURtcII1.....i
COURTS
B. POLICY CHOICE AND LIMITATIONS
C. FEDERALPRIMARYAND SUBORDINATELEGISLATION IIZIIIZIZIZ
(1) The FederalStatute Making Process.
(2) FederalLegislative Process (Bills) Flow Chart
(3) AGuide to FederalRegulatory Processes
28
28
ZZZZZZZZ
35
D. ALBERTA PRIMARY AND SUBORDINATE LEGISLATION
(1) RolesandResponsibitities in thePreparation ofLegislation
(2) Legislative Process - Statutes
*
(3) Alberta Legislative Process (Bills) Flow Chart^
(4) Alberta Subordinate Legislative Process
40
A(i
40
46
..
50
E. LIMITS ON DELEGATED AUTHORITY
i{\LJ^onth'Exercize°fDeie8"ed
il
(2 )Problem on Subordinate Legislation
62
PART II: LEGISLATIVE DRAFTING
A. GENERAL RULES AND CONVENTIONS OF LEGISLATIVE DRAF™ZZ
(1)
(2)
B.
^
The Organization ofLegalInstruments...
Alberta Drafting StyleManualforActs, Regulanins'^rslnTouZuZ
%
DRAFTING EXERCISES
Exercise #1: Organization
(1) Summary ofpoints to be learned
ZZZZZZZ]
Exercise on organization
Exercise #2: Legislative Sentences ZZZZZZZ
(1) Summary ofpoints to be learned: ...ZZZZZZZZZ
92
94
9?
(2)
(2)
(3)
drafting legislative sentences
Exercise on legislative sentences
(1)
(2)
Summary ofpoints to be learned
Exercises on definitions
^2
97
98
Cvil,c #3:
^XZcise
°n orSanization and kgidaO^li^i^ZZIIZ
Exercise
Definitions
(a)
(b)
Drafting definitions
Definition practice problems.
101
*01
Z..ZZ.ZZ.
Exercise #4: Archaic Legislation
105
I05
Z.'.'ZZ."
Exercise usingArchaic Legislation
(a)
An Ordinance Re The Medical"profession Z"
(b)
fnn
J°0
An Ordinance Re Pound Districts
~
'
(1)
109
f*^*^*C.ZW<£^
))°
Paragraphing exercise
110
PART in: LEGISLATIVE INTERPRETATION.....
••••••••••••••••••••••••••••••••..............,..„...............#.m##mm>m>mm^
A.
THE MAKE-UP OFASTATUTE
B.
EXAMPLES OF STATUTORY INTERPRETATION PROBLEMS
C.
*******
GENERAL APPROACH TO STATUTORY INTERPRETATION
108
I08
108
Exercise#5: Paragraphing
(2)
106
^
113
113
~"~115
ZZZZIIZll?
iii77
(n T^/J^T^
™the Reading ofStatutes"
(2
The Intention ofthe **""****»*
Legislature
y*»*««*»
1]?
(3) Academic articles.
722
<b>W
Jo»s'S^
m
J23
John Willis, Statute Interpretation in a Nutshell"
rJn «» ,th,?U"i!an' "St^utory Interpretation in aNew Nutehe'ii"
131
(4) The "Rules" ofStatutory Interpretation..
Re Rizzo andRizzo Shoes Ltd.
BellExpressVu LimitedPartnershipiv.Rex
Regina
exrel. Toronto Transit Commisswn7.CUyTo7r7ud
Lacks v. lacks
Kravestsky v. Kravestsky
Cotter v. Cotter
]4«
179
179
187
192
199
204
'
^T^riversFelloWshipofSouthernAlbertav.Cal^
Ellerman
Lines v. Murray
^^sury (u«j^a.u.u;
2"
221
CHAPTER TWO: SPECIFIC AIDS TO CONSTRUCTIOnZZIII
^
A. CONTEXT.
(1)
Introduction
227
** *
*"
Wiggleworthv. The Queen ZZZZZZZ."
Internal Context-LanguageAids
22?
228
cZC%va
S0CUS'v.ZSd6m
City ofNanaimo
Rascal 8meris>
Truckingand
Ltd."*"**> ™iu7e7eZiu^aterius
23°
230
(2)
Griniv. Grini
R. v.Strahl
(3)
B.
Language contextproblem
ZZZZZZZ
EXTERNALCONTEXTOFTHELEGISLATION-ZZZZZZZ!
(1)
241
^
Social context
R. v. Oakes
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Legal context
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231
237
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(3)
Common law context
Fisher v.Bell.
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Use ofextrinsic material
Re: Section 94(2) ofthe Motor VehicleActTmS)
R. v.Heywood
ZZZZZ."
R. v.Sullivan
R. v. Morgentaler
CHAPTER THREE: PRESUMPTIONS....•••••••••••••••••••••••••••••........................,........„..###mm>>m ^mm>^
249
249
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259
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262
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263
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A. RETROACTIVITY AND INTERFERENCE WITH VESTED RIGHTS -INTRODUCTION ' 280
B. COMMENTONRETROSPECTIVEVS.RETROACTIVEANDVESTEDRIGHTS
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andGeneral)..
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C. PRESUMPTION AGAINSTSUBSTANTIAL ALTERATIONOFT^
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PART IV : SAMPLE FINAL EXAMINATIONS
FinalExamination - December 2007
FinalExamination -- December 2008
320
727
336
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PART V: LEGISLATION
354
iv
78
Interpretation Act.
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The Litter Act, R.S.A. 1980,Zl-19
RegulationsActRSA2000,c.R-14
•
354
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398
421
427
79
Faculty of Law
Law 404: Property
Course Outline
2009/2010
Instructors:
Professor Nigel Bankes
403-220-7252
Room 4382 MFH
ndbankes@ucalgary.ca
Professor Nickie Vlavianos
403-220-3971
Room 3353 MFH
nvlavian@ucalgary.ca
Course Description:
Law 404 is designed to provide you with an understanding ofthe basic concepts ofAngloCanadian property law. The focus ofthe course is real property, although we will consider, in an
introductory way, concepts of personal property such as the concept of possession. In real
property, we will cover the following areas: the doctrine of tenure; aboriginal title; the doctrine
of estates; fee simple, life and leasehold estates; equity; the rule against perpetuities; landlord
and tenant relationships; co-ownership; the registration oftitle to land; and servitudes over
land.
In general, the Fall term classes and materials are an introduction to the essential idea of
property —and, in particular, private property —and the fundamental doctrines and principles
governing the relationships between people with respect to property and between people and
property. The Winter term consists of a more in-depth look at these basic concepts and
principles in the context oflandlord and tenant relationships, co-ownership, the land titles
system and servitudes over land.
Course Objectives:
As an introduction to property law concepts, the primary objective of Law 404 is to build a solid
foundation for further study in such areas as trusts, wills and estates, real estate transactions,
land-use planning, family law, natural resources law, environmental law, commercial law, tax
law, Aboriginal law and intellectual property.
By the end of the course, students should be able to:
• understand the legal doctrines, principles and rules applicable to the ownership and use
Law 404: Property - 2009-2010 Course Outline
1
80
of property and the policies that underlie the law;
•
•
•
synthesize the various doctrines, principles, rules and policies considered in the course;
apply the various doctrines, principles, rules and policies to solve problems involving
conflicting claims to property; and
critically evaluate elements of the law of property.
Required Materials:
•
•
•
•
Cases and Materials on the Law of Property, Volume I (Fall 2009)
Cases and Materials on the Law of Property, Volume II (Winter 2010)
The following provincial statutes:
o Judicature Act, R.S.A. 2000, c. J-2
o Law ofPropertyAct, R.S.A. 2000, c. L-7
o DowerAct, R.S.A. 2000, c. D-15
o Residential Tenancies Act, S.A. 2004, c. R-17.1
o Perpetuities Act, R.S.A. 2000, c. P-5
o Land Titles Act, R.S.A. 2000, c. L-4
Other required material as noted in class.
Each volume of the Cases and Materials on the Law of Property will be available for purchase at
the Student's Union Copy Centre "Bound and Copied". Volume I is now available.
The six Alberta statutes may be obtained by downloading them from the sites listed on the
home page of the Law Library <http://library.ucalaarv.ca/branches/lawlibrary/> under
"Legislation" and then under "Alberta".
Highly Recommended Materials:
Bruce Ziff, Principles ofPropertyLaw, 4th edition (Toronto: Carswell, 2006) (available for
purchase at the University of Calgary Bookstore).
Reference Books on Reserve:
The following are well respected treatises, each of which covers a particular area of the course.
However, none of them is adequate for the entire course.
Crossley Vaines' Personal Property, & edition,(1973)
R.E. Megarry, The Law ofReal Property, 6th edition (2000)
Cheshire and Bum's Modern LawofReal Property, 17th edition (2006)
Robert Megarry and AJ. Oakley, A Manual ofthe Law ofReal Property, 8th edition
(2002)
A.M. Sinclair, An Introduction to Real Property, 5th edition (2005)
Williams and Rhodes'Canadian Law ofLandlord and Tenant, 6th edition (1998)
V, DiCastri, Registrationof Title to Land(19S7)
T. Mapp, TorrensElusive Title: basic legalprinciplesofan efficient Torrens'system
(1978)
Law 404: Property - 2009-2010 Course Outline
81
AnneWarner La Forest, Angerand Honsbergers'Law ofRealProperty, 3rd edition
(2006)
Bruce Ziff, Principles ofProperty Law, 4th edition (2006)
Bruce Ziff, AProperty Law Reader: Cases, Questions &Commentary(2004)
Method of Evaluation:
There are two components tothe evaluation in Law 404. The first is atwo-hour compulsory
mid-term examination worth thirty-five (35%) percent of your final grade in the course, to be
written during the December 2009 examination period. The December examination covers the
Fall term material.
The second component is atwo-and-one-half-hour compulsory final examination worth sixtyfive (65%) percent ofyour final grade, to be written during the April 2010 examination period.
The April exam covers the Winter term material.
Both examinations are "open book" which means you may bring any materials into the
examination room with the exception of library materials. Laptop computers are not permitted
in the examination room.
Feedback:
Feedback will be provided by written comments and questions on the graded examination
papers. A sample answer or marking guide for each examination question may also be
provided. Students should not hesitate to discuss the course and evaluation components with
their instructor personally.
Method of Determining Final Grade:
Each question on each ofthe two examinations will be graded on the basis of the University of
Calgary's twelve-band scheme with the value of4.3 accorded to the A+ for the purposes ofour
calculations.
A+ = 4.3
B+ = 3.3
C+ = 2.3
D+ = 1.3
A
B
C
=2.0
D
=1.0
C- = 1.7
F
=0.0
=4.0
A- = 3.7
=3.0
B- =2.7
The final grade for the course will be calculated by combining weighted results for each
question on each examination. Final grades will be assigned on the basis of the following grade
point conversion scale. Note that the A+ grade ultimately carries a value of4.0 on the
University's scale for GPA purposes.
Law404: Property - 2009-2010 Course Outline
82
A+ = 4.01 - 4.3
B+ = 3.15 - 3.499
C+ = 2.15 - 2.499
D+ = 1.15 - 1.499
A
B
C
=1.85-2.149
D
=0.85-1.149
C- = 1.50 - 1.849
F
= 0.00 - 0.849
=3.85-4.00
A- = 3.50 - 3.849
=2.85-3.149
B- = 2.50 - 2.849
The Faculty of Law has adopted a grading policy requiring each course to have a "B" median
grade. In order to comply with this grading policy, it may be necessary to raise or lower the
grades. The instructors reserve the right to adjust the grades in order to achieve a WB" median
grade in this course.
Law 404: Property - 2009-2010 Course Outline
83
Faculty of Law
Law 404: Property
Course Syllabus
Fall 2009
Instructors:
Professor Nigel Bankes
Room 4382 MFH
403-220-7252
ndbankes@ucalgary.ca
Professor Nickie Vlavianos
Room 3353 MFH
403-220-3971
nvlavian@ucalgary.ca
«7^bp°°kW: 9*esandtrials on the LawofProperty Volume I
air. Bruce Ziff, PrinciplesofPropertyLaw, 4th edSS Carswell, 2006)
September 10
Introduction to Law 404
September 14
THE CONCEPT OF PROPERTY
• What is Property?
o and
International
• Notes
Questions News
1-4 Service v. AssociatedPress
"actress
Casebook, pages 1-8
Ziff, pages 1-8
September 17
o
o
Notes and Questions 5-8
"What is Property?" Problem
Casebook, pages 9-14
Ziff, pages 9-48
September 21
• The Allocation and Distribution of Property Rights
o McKie v. The KVP Co. Ltd
o Notes and Questions
Casebook, pages 15-24
Ziff, pages 97-98; 48-51
Law 404: Property - Fall 2009 Syllabus
84
September 24
• The Distinction Between Real Property and Personal Property
Casebook, pages 24-31
Ziff, pages 68-72
September 28
THE CONCEPT OF POSSESSION
o
The Tubantia
Casebook pages 32-38
Ziff, pages 117-121
Parker v. British Airways Board
Notes and Questions
Finders Law Problems
Casebook, pages 38-52
Ziff, pages 133-140
October 1
REAL PROPERTY
• The Doctrine of Tenure
Casebook, pages 53-61
Ziff, pages 53-65
October 5 and 8
• Aboriginal Title
o Defgamuukw v. The Queen in Right ofBC
o
Notes and Questions
Casebook, pages 61-91
October 15
•
Ziff, pages 61-65, 67-68, 175-189
The Doctrine of Estates
o Possession, Remainder and Reversion
o Different Types of Estates
o Creation of an Estate in Fee Simple
o
ReAirey
o The RuralMunicipalityofStuartburn v. Kiansky
Casebook, pages 91-101
Ziff, pages 151-159
Law 404: Property - Fall 2009 Syllabus
85
October 19
o Defeasible and Qualified Estates
Casebook, pages 101-107
Ziff, pages 221-255
October 22
Caroline (Village) v. Roper
Notes and Questions
Casebook, pages 107-111
October 26
Re Ross Estate
Powell v. Powell
Notes and Questions
Casebook, pages 111-119
October 29, November 2,5
• The Rule Against Perpetuities
Casebook, pages 120-125
November 9
• The Life Estate
o Re Moffat Estate
Ziff, pages 255-264
o Notes and Questions
Casebook, pages 126-136
Ziff, pages 159-169
November 16
o
Re Chupryk
o
Note
Casebook, pages 136-147
November 19
• Dower in Alberta
-
o° SSn'TSSSST" "** °fW°men In We*- Canada
o Notes and Questions
Casebook, pages 147-169
Ziff, pages 169-173
November 23
o Clark v. Clark
o Notes and Questions
Casebook, pages 169-175
Law 404: Property - Fall 2009 Syllabus
86
November 26
o Schwormstede v. Green Drop Ltd
o Notes and Questions
Casebook, pages 175-185
November 30
o Shopsky andShopsky v. Danyliuk
o Meduk and Medukv.Soja and Sola
o Notes and Questions
Casebook, pages 185-196
December 3
o
o
o
Senstad v. Makus
Dower Act forms
McFarland v. Hauser
o Notes and Questions
Casebook, pages 196-209
Law 404: Property - Fall 2009 Syllabus
87
Faculty of Law
Law 404: Property
Course Syllabus
Winter 2010
Instructors:
Professor Nigel Bankes
Room 4367 MFH
4rn „n 7.„
403-220-7252
ndbankes@ucalgary.ca
Professor Nickie Vlavianos
Room 3353 MFH
4rn
„n ,Q71
403-220-3971
403-220-3971
nvlavian@ucalgary.ca
Casebook- Cases andMaterials on the Law ofProperty, Vol II
Ziff: Bruce Ziff, PrinciplesofPropertyLaw, 4th ed^oronto: Carswell: 2006)
January 11
LANDLORD-TENANT
•
Introduction
• Classifying Leasehold Estates based on Duration
• c~Kxsssrntiai
E,ernenb and *•*•
o RealPropertyAmendmentAct'(1845)
o Beemer v. Brownridge
Casebook, pages 1-14
Ziff, pages 265-272
January 13
o Beemer v. Brownridge (continued)
o
Notes and Questions
° ssr**"Eplscopa,e cathoiique Romane ********j. shePPard&
o
Notes
Casebook, pages 14-18
January 18
o Walsh v. Lonsdale
o
Note
Casebook, pages 18-23
Ziff, pages 191-197
88
January 20
• Edited Form of a Commercial Lease in Alberta
• The Transfer of the Landlord and Tenant Interests
o Assignments and Subleases
o Aronovitch v. Lyons Tours
o
Notes
Casebook, pages 23-37
Ziff, pages 272-278
January 25
The Continuing Obligations of the Original Lessee
Assign or Sublet with Consent of the Landlord
Sundance Investment Corp. Ltd. v. RichfieldProperties Ltd
Notes and Questions
Casebook, pages 37-46
January 27
• The Running of Covenants and the Concept of Privity
o
o
Hall v. Ewin
Spencer's Case
o
Notes on Spencer's Case
Casebook, pages 47-52
February 1
Ziff, pages 373-395
o
Note to Dewar v. Goodman
o
Dewar v. Goodman
o Additional Notes to Dewar v. Goodman
o Merger Restaurants v. LakeviewDevelopment ofCanada Ltd.
Casebook, pages 53-60
February 3
• Basic Rights and Obligations of the Landlord and Tenant
o Covenant for Quiet Enjoyment
• London Borough ofSouthwark v. Mills
- 5££34merta Ud V' A,bertd (Gaming andLi°"orCommission)
Casebook, pages 61-72
Ziff, pages 278-281
February 8
Covenant of Non-derogation from Grant
• Harmer v. Jumbil (Nigeria) Tin Areas Ltd.
•
Note
Casebook, pages 72-76
89
February 10
o Covenants Related to the Condition of the Premises
•
Premises Fitfor Habitation
• Obligations to Repair
•
Lane v. B-Une Express Ltd.
o Tenant's Covenant to Pay Rent
o Landlord's Remedy of Distress
•
Cisakowski v. Fekete
Casebook, pages 76-85
Ziff, pages 281-282
February 22
Termination of the Landlord-Tenant Relationship
• 361488Alberta Ltd. v. Westwinds Club
•
Johnston v. Givens
•
Note
Casebook, pages 85-93
Ziff, pages 282-287
February 24
Highway Properties Ltd. v. Kelly Douglas &Co Ltd.
WesbildEnterprises Ltd. v. Pacific Stationers Ltd.
Deerfoot Mall (Calgary) Ltd. v. Burt
Note
Casebook, pages 93-109
March 1
CO-OWNERSHIP
• Communal Landholding
• Forms and Characteristics of Co-ownership
•
Severance
o Re Sorenson and Sorenson
o Notes and Questions
Casebook, pages 110-122
Ziff, pages 311-330
March 3
mV°H^!J^r
TRANCSFERRING
AND PROTECTING INTERESTS IN LAND
• History of the Torrens
System
• Priorities among Competing Interests at Common Law
o
Rice v. Rice
o
Note
o
Jared v. Clements
• The Nature ofthe Torrens System
o The Settlement of Alberta
o Basic Surveys in Alberta
90
Title Creation
The Principle of Indefeasibility and Exceptions Thereto
The Torrens System in Alberta
Casebook, pages 123-145
Ziff, pages 431-448
March 8 and March 10
• Misdescription, Prior Certificate of Title and Correction of Errors
o Turta v. Canadian Pacific Railway Company
o
Notes
Casebook, pages 145-173
Ziff, pages 448-458
March 15
• Limitations and the Powers of the Registrar
o
Re Pylypow
o Heller v. The Registrar
o
Notes and Questions
Casebook, pages 173-183
March 17
•
Fraud
o
Holt Renfrew v. Singer and Pekarsky
o
Notes
Casebook, pages 183-202
March 22
•
Forgery
Deferred or Immediate Indefeasibility
Lawrence v. Maple Trust Company
Registrar v. Hermanson
Casebook, pages 203-224
March 24
• The Necessity of Registration
o Equitable Interests and Interests off the Reqistrar
o
Problem
o Price v. Materials Testing Laboratories
o Maurice Demers TransportLtd. v. Fountain Tire Distributors (Edmonton) Ltd
Casebook, pages 224-235
March 29
• The Necessity of Registration (continued)
o Passburg Petroleum v. Landstrom Developments
91
Caveats
o
o
Is it a Caveatable Interest?
Frado v. BankofMontreal
o
Note
o
Calford v. Zellers
Casebook, pages 235-251
March 31
•
Caveats (continued)
o PrudentialInsurance Company v. Junak
o
Note
o Holt Renfrew v. Singer v. Pekarsky
o
Note
• Establishing Priorities among Competing Interests
o McKillop andBenjafield v. Alexander
Casebook, pages 252-268
April 5
• Establishing Priorities among Competing Interests (continued)
o ^^
Scwhalb
Casebook, pages 268-276
April 7
TBA
92
LAW 405: FUNDAMENTAL LEGAL SKILLS
2009-2010
COURSE OUTLINE
FALL 2009
Room 2370, Tuesday and Thursday, 4:30 - 5:45
First Class: Thursday, September 10
Last Class: Tuesday, October 20
Class Details:
Instructor:
Catrin Coe
Telephone:
403.297.6697
E-mail:
catrin. coe@albertacourts.ca
Tutorials:
Group 1 - Ann Broughton, Monday, 71:00- 12 in room 3330 except
October 12th (Thanksgiving) when class moved to Tuesday, October
13 from 3-4 p.m. in room 3370
Group 2 - Caroline Magnan, room 3340 as follows:
Tutorial A: Monday, September 22, 11 -12
Tutorial B: Friday, October 2, 12:30 - 1:30
Tutorial C: Monday, October 5, 12-1
Tutorial D: Friday, October 9, 12:30 - 1:30
Tutorial E: Monday, October 19, 12 - 1
Group 3 - Jenette Poschwatta, Tuesday, 3:15 - 4:15, room 3360
WINTER 2010
Class Details:
Room 2370, Tuesday and Thursday, 5-6:15
First Class: Tuesday, January 19
Last Class: Tuesday, March 9
Instructors:
Kim Clarke (legal research)
Catrin Coe (factum writing)
Telephone:
Clarke: 403.220.6720
Coe: as above
E-mail:
kim.clarke@ucalaarv,ca
Coe: as above
Tutorials:
Legal research tutorials times and dates TBD
COURSE DESCRIPTION
Fundamental Legal Skills ("FLS") is an introduction to legal method, legal systems and
institutions; sources of law; legal analysis, including case analysis and problem solving
skills; courtsystems; precedent; store decisis; legal writing and communication, including
the memorandum of law and factum; oral advocacy, including mooting; research data
bases and legal research skills.
FLS 2009-2010
Page 1 of 3
9/4/2009
93
The course is taught through large group classes and small group tutorials. For 2009-2010,
the substantive areas of law used to illustrate (and apply) the principles of this course will
be the tort of nuisance and criminal law.
REQUIRED TEXTS AND MATERIALS
1. Margaret E. McCallum, Deborah A. Schmedemann & Christina L Kunz, Synthesis:
Legal Reading, Reasoning and Writing in Canada, 2d ed. (Toronto: CCH
Canadian Limited, 2008)
2. Law 405: Fundamental Legal Skills Materials 2009-2010 from Blackboard
REFERENCE TEXTS
There are many legal research, analysis and writing texts available in the library. The
most current editions can be found in either the Reserve or Reference rooms, in the KF
240 - KF 250 call number range. Dictionaries and words and phrases are located in the
Reference Room, in the KF 156 call number range. The Canadian Guide to Uniform Legal
Citation ("McGill Guide") can be found in both the Reserve and Reference rooms at
KF245 .C28 2006.
TUTORIALS
Application of the skills being discussed in class takes place in weekly small group
tutorials, through in-class exercises. Check the " TutorialGroups" document on
Blackboard to determine to which tutorial group you have been assigned. See above
for room s, dates and times.
EVALUATION
There are four graded assignments and one examination:
1.
Analytical case brief assignment distributed on Tuesday, September 22, 2009
and due Tuesday, September 29, 2009 by 9:00 a.m.
2.
Memorandum of law assignment distributed on Thursday, October 1, 2009 and
due Thursday, October 15, 2009 by 9:00 a.m.
3.
Moot assignment distributed Thursday, October 15, 2009.
a. "Outline of Argument" due Thursday, October 22, 2009 by 9:00 a.m.
b. Oral argument will take place duringthe week of October 26, 2009.
4.
Legal research examination on Tuesday, February 9, 2010.
5.
Legal research plan and critique:
a. Distributed Tuesday, February 23, 2010
b. Part 1 (the research plan) must be date stamped in the library by Tuesday,
March 2 by 5 p.m.
c. Due Monday, March 22, 2010, by 1:00 p.m.
FLS 2009 - 2010
Page 2 of 3
9/4/2009
94
These dates andtimes are subject to approval by the Academic Planning Committee
and Faculty Council as shown on the Assignment and Final Examination Schedules
Students will be notified of any changes.
Assignments must be submitted to the Faculty Receptionist in the Student Services Office
by the date and time specified.
GRADES
Grades for the assignments and the examination are assessed according to a 3-band
grading system:
CR - Credit
D - Marginal
F - Fail
You must successfully complete each assignment and the exam with a CR grade to
receive a Credit grade in the course. If your assignment, moot or exam is graded "D" or
ttF", you must remedy thatgrade by redoing the assignment, moot or exam within a
limited time period immediately following the initial assignment.
LATE ASSIGNMENTS AND FAILURE TO HAND IN ASSIGNMENT
Assignments must be turned in by the stated time. Late assignments shall be remedied
by successfully completing two additional analytical case briefs, as assigned.
Failure to moot, take the examination or turn in any assignment will result in a grade of
FLS 2009-2010
Page 3 of 3
9/4/2009
95
Law 405: FUNDAMENTAL LEGAL SKILLS
2009-2010
SYLLABUS, RFQUIRED RFADINQS AND ASSIGNMENT DFTAII S
Class/
Date
Topic
Readings/Materials1
Tutorial
1
Thursday,
Introduction to course
September
Canadian legal system
Assignment Details
Text, ch. 1, ch. 3 "B. Court Structure"
FLS Skills Checklist
10
http://www.iustice.gr.,ca/ena/deptmin/pub/ccs-aic/pnq(=»3 html
Constitution Act, 1867
Tutorial schedule
Tuesday,
Sources of law
September
Reading cases incl. jurisdiction,
15
stare decisis, precedent
Thursday,
Structure of legal rules
•
September
The tort of nuisance
• Cases for Nuisance Problem (17 pages)
17
Briefing cases
case brief,
•
Case Briefing - Prof. Iwan Saunders
memorandum of law
•
Basic Format of a Case Brief - Prof. Irene
and moot assignment
Text, ch. 3 to p. 27 (Briefing)
Text, ch. 2, ch. 3 "E. Briefing a Case"
McConnell
•
Template for the Analytical Case Brief
•
Required Format for the Analytical Case
Cases for analytical
posted on BB
Brief
A
As per tutorial
Determining "legally relevant
schedule
facts" and "issues"
Handout
Materials not in the textbook are posted on Blackboard or accessible via the link provided.
FLS-2009-2010
9/4/2009
96
Class/
Date
Topic
Readings/Materials1
Assignment Details
Tutorial
Briefing the Royal Anne Hotel
case
Tuesday,
Review of the first assignment,
Text, ch. 4
Analytical case brief
September
the analytical case brief
Analytical Case Summary
assignment posted on
22
Fusing cases
Intellectual Honesty
Thursday,
Legislation
Text - Appendix B "Canadian Case Law'
September
Case briefing and fusing
(pp. 378-381); Appendix A (pp. 323-375)
24
summary
Canadian Guide to Uniform Legal
Citations
Citation, 6 ed. ("McGiil Guide") excerpt
Effective legal writing
Quoting Authorities
Effective Writing
As per tutorial
Fusing cases, citations using the five
Case Synthesis Practical Application
schedule
cases, practical application of case
Case Briefing Samples (optional)
synthesis using five hypothetical
cases
Tuesday,
Introduction to the
Text, ch.8
Analytical case brief
September
memorandum of law
Logic and Legal Reasoning - A Guide for
assignment due by 9:00
29
Deductive reasoning
Law Students
a.m
Thursday,
Review of the second
Text, ch. 9
Memorandum of law
October 1
assignment, the memorandum
2009-10 Problem (3 pages)
assignment posted on
of law
Reasoning by example and
policy analysis
C
As per tutorial
Small group analytical case briefing
schedule
of Mendez v. Palazz and Schenck v.
FLS-2009-2010
9/4/2009
97
Class/
Date
Topic
Readings/Materials1
Tutorial
Assignment Details
Ontario, and discussion of their
application to Problem
Tuesday,
Legal analysis using the IRAC
October 6
method
Thursday,
Writing the memorandum of law
October 8
Text, c. 11
Text, ch. 10, 13, 12
Evaluation ofMemorandum and Sample
Memorandum Format
Sample Memorandum (optional)
D
As per tutorial
Review of memorandum evaluation;
schedule
small group analytical case briefing
of Thompson-Schwab v. Costaki and
its application to the Problem
10
Tuesday,
October 13
Summary: case briefing, fusing
cases, legal analysis and writing a
Intellectual Honesty (refresher)
Quoting Authorities (refresher)
memorandum
11
Thursday,
Oral advocacy
October 15
Text, c. 19 (pp. 183-192)
Memorandum of
Oral Advocacy Materials
Law assignment
Moot Assignment - Birkenstock v. Hummer
due by 9:00 a.m.
decision and Instructions
Moot assignment
Moot schedule (dates, times and student
assignments)
As per tutorial
Moot assignment details and
schedule
practicing introductions, formalities,
and schedule
posted on BB
qnd presenting the facts
12
Tuesday,
Appellate advocacy (con't)
Text, c. 19 (pp. 193- 199)
FLS-2009-2010
9/4/2009
98
Class/
Date
Topic
Readings/Materials1
Assignment Details
Tutorial
October 20
Thursday,
Outline of argument
October 22
A
due by 9:00 a.m.
Week of Oct.
Moots held - refer to Moot schedule
26
for details
January 11 or
Westiaw training (computer lab)
12
January 13 or
Mooting as per
schedule
Sign-up sheets details
will be sent to you
Quicklaw training
during Block Week
14
Tuesday,
Legal research
January 19
Thursday,
Legal research
January 21
TBD
Tutorial (reserve room)
Tuesday,
Legal research
January 26
Thursday,
Legal research IV
January 28
C
IT
TBD
Tutorial (reserve room)
Tuesday,
Legal research V
February 2
Thursday,
FLS-2009-2010
Legal research VI
9/4/2009
99
Class/
Date
Topic
Tutorial
Readings/Materials'
Assignment Details
February 4
D
TBD
Tutorial (reserve room)
Tuesday,
Legal Research exam
February 9
Monday,
Crime 410 -Criminal
February 22
Law Moot Problem
Tuesday, Feb
Factum writing
distributed
Text, ch. 16
Critical research plan
23
Evaluation of the Factum
assignment distributed
Rule 540(1)
The Factum - Jonette Watson Hamilton
Sample Appellant's Factum
Sample Respondent's Factum
Thursday, Feb
Factum writing II
Text, ch. 17 and 18
'
25
Tuesday,
Part 1 (research plan)
March 2
of critical research
assignment must be
date-stamped in library
by 5 p.m.
Monday,
Crime 410 Factum due
March 8
10
Tuesday,
March 9
Oral advocacy refresher
Text, c. 19
Oral Argument - How to Sway the Undecided
and Feel Good About it
FLS-2009-2010
9/4/2009
100
Class/
Date
Topic
Readings/Materials1
Assignment Details
Tutorial
Week of
Crime 410 Moots
March 15
Monday,
March 22
Part 2 (critique of
research plan) of
critical research
assignment due
FLS-2009-2010
9/4/2009
101
Fundamental Legal Skills
Clarke
Winter 2010
Legal Research Supplemental Outline
Class Times:
Tuesday and Thursday 5:00-6:15
Classroom:
2370 MFH
Office:
E-mail:
Office hours:
2304 MFH (in the library)
kim.clarke(g>,ucalgarv.ca
By appointment
The legal research component of Fundamental Legal Skills will be taught over three weeks from
January 19 through February 5. The exam is scheduled for Tuesday, February 9.
ATTENDANCE
It is critical that you attend the classes and tutorial sessions. The exam will be based on my
lectures, the PowerPoint slideshows and the in-class exercises.
TEXTS
There is no required text in the course nor are there any class readings. There are, however, many
legal research texts available in the library if you want to read about resources discussed in class.
The most current editions can be found in either the Reserve or Reference rooms, in the KF 240 -
KF 250 call number range.
TUTORIALS
Application of research skills being discussed in class takes place in the weekly small group
tutorials, through in-class exercises. The tutorials are an hour long, on either Thursday or Friday,
and will be held in the law library.
The tutorials are scheduled for Thursday, January 21 & 28 and February 4 and Friday, January 22
& 29 and February 5 at the following times:
•
•
•
•
Thursdays 1:00-2:00
Thursdays 2:15-3:15
Thursdays 3:30-4:30
Fridays 12:30-1:30
Please let me know, via email, by 4:00 p.m. on Thursday. December 17 if you have conflicts with
any of the tutorial sessions. I will try to accommodate scheduling issues; however, I may not be
able to accommodate all requests. Scheduling adjustments will be made on a "first come, first
serve" basis. I will not consider any late accommodation requests in my scheduling. Once the
tutorial schedule is made, it will be the responsibility of the student seeking to change their
session to find someone who is willing to switch with them.
102
EVALUATION
The legal research exam will be held on Tuesday, February 9, 2010, in room 2370. In Law 405,
all grades are assessed according to a 3-band grading system:
CR
-
Credit
D
Marginal
F
Fail
For the exam, a D is 63-66% and an F is anything under 63%. You must, therefore, receive a
grade in excess of 66% to receive a CR (Credit) on the exam. If you receive a D or F on the
original exam, you will be required to take re-do exams, containing different questions than the
original exam, until you receive a CR.
103
THE UNIVERSITY OF CALGARY
Faculty of Law
LAW 406: Torts
(Fall & Winter, 2009/10)
COURSE OUTLINE
(Sections 01 and 02)
INSTRUCTORS:
Greg Hagen (Section 01)
Iwan Saunders (Section 02)
MFH 4343
MFH 4339
Phone: 220-4012
Phone: 220-8081
Email: gha gen@uca1gary.ca
email: saunders@ucalgarv.ca
Preferably by appointment.
Preferably by appointment.
Wednesday, 1:15-2:30
Friday, 11:00-12:15
Wednesday, 1:15-2:30
Friday, 11:00-12:15
Winter
Monday, 3:00-4:15
Wednesday, 3:00-4:15
Monday, 3:00-4:15
Wednesday, 3:00-4:15
LOCATIONS:
Section 01:
Section 02:
Room 3370 (Fall)
Room 3360 (Winter)
Room 3360 (Fall)
Room 3370 (Winter)
OFFICE HOURS:
CLASS TIMES:
Fall
BLACKBOARD SITE:
This Course Outline and the Supplementary Materials are available on Blackboard (Law 406Torts) at www.blackboard.ucalgary.ca, or from the portal www.mv.ucal pary.™. Further
information on Blackboard can also be found at that site.
104
COURSE DESCRIPTION
An introduction to the law of torts. Negligence, no-fault and intention as bases of liability. The
anatomy of the law of negligence, strict liability, and some intentional torts. Personal injury,
property damage, and pure economic loss.
COURSE OBJECTIVES
By the end of the course, students should be able to (1) describe and apply the main legal criteria
for deciding liability in tort, (2) recall and apply salient cases and statutes, (3) explain and
evaluate legal practice and policy, in light of the goals and themes of tort law, and (4) identify
and analyse some emerging legal questions.
REQUIRED TEXTS
• Linden, Klar & Feldthusen, Canadian Tort Law (13th ed.). Referred to in the Syllabus as
CB (Casebook). Available at the University of Calgary Bookstore.
•
Supplementary Materials (Hagen and Saunders). Referred to in the Syllabus as SM.
Available on Blackboard. Also available at "Bound & Copied", the University of Calgary
Students' Union Copy Centre, provided you order in advance.
•
Additional materials as occasionally required.
REFERENCES (on Reserve)
•
•
•
•
•
Fleming, The Law ofTorts (9th ed., 1998)
Klar, Tort Law (4th ed., 2008)
Linden, Canadian Tort Law (8th ed., 2006)
Osborne, The Law ofTorts (3rd ed., 2007)
Feldthusen, Economic Negligence (5th ed., 2008)
EVALUATION
(1).
A mid-year examination (open-book) to be written^on Friday, December 18, 2009, worth
30% of the final grade.
(2)
A final examination (open-book) to be written on Wednesday, April 14, 2010, worth 70%
of the final grade.
FEEDBACK
By way of written comments and discussion.
105
GRADES
All exams and assignments are graded according to University's 12-band grading system as
follows:
GRADE
A+
GRADE POINT VALUE
4.3
GRADE
C+
4.0
GRADE POINT VALUE
2.3
2.0
3.7
1.7
B+
3.3
D+
1.3
B
3.0
D
1.0
B-
|2.7
0
Final course grades will be determined as follows:
A+
4.01-4.30
C+
=
3.85-4.00
2.15-2.49
1.85-2.14
3.50-3.84
C-
B+
3.15-3.49
D+
B
2.85-3.14
D
B-
2.50-2.84
1.50-1.84
=
1.15-1.49
0.50-1.14
0.00-0.49
BUT NOTE:
An A+ grade ultimately carries avalue of 4.0 on the University's scale for purposes of
calculating your GPA.
106
Law 406: Torts
SYLLABUS
* Note:
CB refers to the Casebook, Canadian Tort Law
SM refers to Supplementary Materials on Torts
**Note:
Students are also required to read the "Notes" following the required cases.
I.
INTRODUCTION TO TORTS
SM: 3
Evaniuk v. 79846 Manitoba Ltd., Man. QB (1990)
CB: 1-27
Introduction: The Nature and Functions ofTort Law
H.
NEGLIGENCE
A.
Introduction to Negligence
CB: 157-158
B.
Standard of Care
1.
Unreasonable Risk
2.
3.
CB: 171
Bolton v. Stone, HL (1951)
CB: 375
Wagon Mound (No. 2), PC (1966) (references to Bolton v. Stone only)
The Reasonable Person
CB: 179
Vaughan v. Menlove, Common Pleas (1837)
CB: 181
Blyth v. Birmingham Water Works, Exchequer (1856)
Custom
CB: 186
4.
Waldickv. Malcolm, SCC (1991)
Statutory Standards
CB: 189
R. v. Saskatchewan Wheat Pool, SCC (1983)
CB: 196
Gorris v. Scott, Exchequer (1874)
CB: 200
Ryan v. Victoria (City), SCC (1999)
107
5.
Particular Cases
a.
The Young
CB: 204
b.
Heislerv. Moke, Ont. High Court (1972)
Mental and Physical Disability
CB: 210
c.
d.
Fiala v. Cechmanek, ABCA (2001)
Professional Negligence
CB: 217
Challand v. Bell, ABSC (1959)
CB: 225
Reibl v. Hughes, SCC (1980)
SM: 8
Arndt v. Smith, SCC (1997)
SM: 15
Ciarlariello v. Schacter, SCC (1993)
SM: 16
Halkyard v. Mathew, ABCA (2001)
CB: 240
Brenner v. Gregory, Ont. HC (1973)
Emergency
CB: 352
Emergency MedicalAidAct, RSA 2000, c. E-7, s.2.
C.
Duty of Care
1.
Duty Generally
2.
3.
CB: 286
Donoghue v. Stevenson, HL (1932)
CB: 291
Cooper v. Hobart, SCC (2001)
CB: 301
Hill v. Hamilton-Wentworth Police Services Board SCC (2007)
Unforeseeable Plaintiff or Policy?
CB: 321
Hay (Bourhill) v. Young, HL (1943)
CB: 324
Dobson v. Dobson, SCC (1999)
Failure to Act
CB: 329-330
a.
"Nonfeasance" and "Misfeasance"
CB: 330
'The Holy Bible"
CB: 331
Horsley et al v. MacLaren, SCC (1972)
CB: 333-334
Relationships Requiring Rescue
108
b.
Relationships of Economic Benefit
CB: 334
c.
Jordan House Ltd. v. Menow, SCC (1974)
Relationships of Control or Supervision
CB: 346
d.
Creation of Danger
CB: 347
e.
Reliance Relationships
CB: 349
f.
Zelenko v. Gimbel Bros., New York SC (1935)
Statutory Duties
CB: 353
g.
Oke v. Weide Transport Ltd., Man CA (1963)
O'Rourke v. Schacht, SCC (1973)
Categories or Principles?
CB: 339
Childs v. Desormeaux, SCC (2006)
D.
Damage, Causation & Proof
1.
Damage
CB: 159
2.
Causation
CB: 162
Kauffrnan v. 7TC, Ont CA (1959), afTd SCC (1960)
CB: 163
Athey v. Leonati, SCC (1996)
3.
Proof
a.
Proof of Negligence
CB: 245
Wakelin v. London &S. W. Ry. Co, HL (1886)
CB: 248
Byrne v. Boadle, Exchequer (1863)
CB: 249
Fontaine v. Insurance Corporation ofBritish Columbia, SCC (1998)
CB 254
Leaman v. Rea, NBSCA (1954)
SM: 21
Contributory Negligence Act, R.S.A. 2000, c. C27 s. 1(1).
SM: 22
Highway Traffic Act, R.S.A. 2000, c.H-8, s.180.
CB: 258-9
NOTES
109
8
b.
Proof of Causation
CB: 260
Snell v. Farrell, SCC (1990)
CB: 266
Walker Estate v. York Finch General Hospital, SCC (2001)
CB: 267
Resurfice Corp. v. Hanke, SCC (2007)
CB: 270
Cook v. Lewis, SCC (1951)
CB: 273
Fairchild v. Glenhaven Funeral Services Ltd., HL (2002)
E.
Proximate Cause (Remoteness)
1.
General Principles
CB: 364
The Wagon Mound (No. J), PC (1961)
2.
Retreat from Wagon Mound (No. 1)
a.
The Thin-Skull Problem
b.
CB: 389
Smith v. Leech Brain Co., QB (1961)
CB: 167-168
Athey v. Leonati, SCC (1996)
Type of Damage
CB: 370
c.
Possibility of Damage
CB: 375
d.
3.
Hughes v. LordAdvocate, HL (1963)
The Wagon Mound (No. 2) PC (1966)
Psychiatric Damage
CB: 394-395
Psychiatric Damage
CB: 395
Mustapaha v. Culligan of Canada Ltd., SCC (2008)
Intervening Forces
CB: 416
Harris v. TTC, SCC (1967)
4.
Recurring Situations
a.
Rescue
CB: 399
b.
Horsley v. MacLaren, SCC (1972)
Second Accident
CB: 411
Weilandv. Cyril Lord CarpetsLtd., QB (1969)
CB: 412
McKew v. Holland, HL (1969)
110
F.
Defences
1.
Contributory Negligence
a.
General
b.
2.
3.
4.
CB: 431
Butterfield v. Forrester, KB (1809)
CB: 432
Davies v. Mann, Exchequer (1842)
SM: 23
Contributory Negligence Act, R.S.A. 2000, c. C27.
Seat Belt Defence
CB: 443
Galaske v. O'Donnell, SCC (1994)
SM: 25
Labbee v. Peters, ABCA (1999)
Voluntary Assumption of Risk
CB: 452
Hambley v. Shepley, Ont CA (1967)
SM: 30
Crocker v. Sundance, SCC (1988) (section on voluntary assumption of risk)
Illegality
CB: 456
Hall v. Hebert, SCC (1993)
CB: 460
British Columbia v. Zastowny, SCC (2008)
Exclusion Clauses
SM: 30
Crocker v. Sundance, SCC (1988) (section on waivers.)
in.
NEGLIGENCE: PURE ECONOMIC LOSS
A.
Negligent Misrepresentation
B.
CB: 464
Hedley Byrne &Co. v. Heller &Partners Ltd., HL (1963)
CB: 467
Queen v. Cognos, SCC (1993)
CB: 470
Hercules Management Ltd. v. Ernst &Young, SCC (1997)
CB: 477
BG Checo International v. B.C. Hydro, SCC (1993)
Negligent Performance of Services
CB: 482
C.
B.D.C. Ltd. V. Hofstrand Farms Ltd., SCC (1986)
Economic Loss Caused by Defective Products and Structures
CB: 485
Winnipeg Condominiums No. 26 v. Bird Construction Co., SCC (1995)
111
10
D.
E.
Relational Economic Losses
CB: 492
CM? v. Norsk Pacific Steamship Co. Ltd,SCC (1992)
CB: 504
Bow Valley Husky (Bermuda) Ltd. v. St. John Shipbuilding Ltd., SCC (1997)
SM: 35
Fatal Accidents Act, RSA 2000 c. F-8, s. 1-3.
Other Categories?
SM: 37
IV.
GOVERNMENT LIABILITY
SM: 41
A.
Just v. British Columbia.,SCC (1989)
Constitutional Torts
CB: 355
V.
Proceedings Againstthe Crown Act, RSA 2000, c. P-25.
What is the Duty Owed?
CB: 511
B.
Martel v. Canada, SCC (2000)
NOTE 1
OCCUPIERS' LIABILITY
CB: 613-14
Historical Overview
SM: 43
Occupier's Liability Act, R.S.A. 2000, c. 0-4.
CB: 615
Waldick v. Malcolm, SCC (1991)
VI.
STRICT LIABILITY
A.
Origin and Scope
B.
C.
CB: 529
Rylands v. Fletcher, HL (1868)
CB: 533
Rickards v. Lothian, PC (1913)
CB: 539
Read v. J. Lyons & Co. Ltd., HL (1947)
Defences to Strict Liability
CB: 545-549
Defences
CB: 549-550
Notes on Liability for Fires
CB: 550-552
Notes on Liability for Animals
Products Liability
CB 552:
Greenman v. Yuba Power Products Inc., California SC (1963)
112
11
D.
Vicarious Liability
CB: 561
671122 Ontario Ltd. v. Sagaz Industries, SCC (2001)
CB: 564
Bazley v. Curry, SCC (1999)
CB: 569
Jacobi v. Griffiths, SCC (1999)
VII
INTENTIONAL TORTS
A.
Intentional Interference with the Person
1.
Battery
2.
3.
CB: 62
Cole v. Turner, Nisi Prius (1705)
CB: 63
Bettel v. Yim, Ont Co Ct (1978)
Assault
CB: 53
/. De S. &Wife v. W. De S (1348)
CB: 53
Stephens v. Meyers, Nisi Prius. (1830)
CB: 54
Tuberville v. Savage, KB (1699)
CB: 56
Bruce v. Dyer, Ont HC (1966), affdOnt CA (1970)
CB: 57
Mainland Sawmills v. U.S. W. Local 1-3567, BCSC (2007)
Sexual Wrongdoing
CB: 67-70
4.
Intentional Infliction ofMental Suffering
CB: 70
5.
Wilkinson v. Downton, QB (1897)
Intention
a. -Accidental,Negligent and Intentional Conduct
CB: 43
Klar
CB: 43
Garratt v. Dailey, Washington SC (1955)
CB:44
Restatement of Torts, Second
CB: 45
Carnes v. Thompson, Missouri SC (1932)
CB: 45
Basley v. Clarkson, Common Pleas (1681)
113
12
b.
Volition and Capacity
CB: 47
Smith v. Stone, KB (1647)
CB: 48
Tillanderv. Gosselin, Ont HC (1967)
CB: 50
Lawson v. Wellesley Hospital, Ont CA (1975), afTd on another ground, SCC (1978)
B.
Defences to Intentional Torts
1.
Consent
2.
CB: 103
OBrien v. Cunard SS. Co., Massachusetts SC (1891)
CB: 105
Norberg v. Wynrib, SCC (1992)
CB: 117
Malette v. Shulman, Ont CA (1990)
CB: 123
Marshall v. Curry, NSSC (1993)
Self-defence
CB: 132
3.
Cockcroftv. Smith, QB (1705)
Defence of Property
CB: 135
Green v. Goddard, QB (1704)
CB: 136
Bird v. Holbrook, Common Pleas (1828)
114
Law 410: Crime: Law and Procedure
Course Outline and Objectives, 2009-10
Section 01:
Professor Christopher Levy
Office:
Phone:
MFH 4380
403-210-9725
E-mail: clevy@ucalgary.ca
Section 02:
Section 03:
Professor Ross Mitchell
Office: MFH 4304
Phone: 403-299-3978
Professor M. Anne Stalker
Office: MFH 4341
Phone: 403-220-7328
E-mail: Ross.Mitchell@ppsc-sppc.gc.ca E-mail: astalker@uca!gary.ca
OBJECTIVES:
1' Yeomen"'6 ^"^ '" *"*"" '° ^ QMiml Co* itS org^ization and, to acertain extent,
2. particular
To introduce
some aspects of Constitutional Law and the Charter ofRights and rnseooms
Freedoms that
hive
relevance to the Criminal Law.
mat nave
3. To develop in students aworking knowledge of the interpretation of criminal offences in Canada
£^%£S^! identify the required e,~s °f a—- ^ Si
4 ^^c-^^e of the defences avai,ab,e in Canada and h- ** fit with oth
er
5. To practise applying these concepts to new situations through principled analysis.
6 Ividence. ^ CUrSO''y ,0°k *^^ ^^ °f Crimlnal Procedure and the introduction of
7' ^lew7e
^ ^-T
lechniCai
of the
nature and function
ol theT'e
Criminal
Law. 3SpeCtS °f lhe Criminal Law course an overview or
me
MATERIALS:
Required (available at Bookstore):
1. Stuart &Delisle, Learning Canadian Criminal Law(11"' Edition)
2.
Pocket Criminal Code, 2010.
Recommended (available at Bookstore):
1. Roach, CriminalLaiv (hw\n Law Essentials of Canadian Law Series) (3'(i edition)
2.
Stuart, Canadian Criminal Law (3,d edition)
115
METHOD OF EVALUATION:
Midterm (Christmas) Examination (1 Vfe - 2 hours) - Thursday, December 17, 2009
30%
This examination will be designed to test Objectives 1, 2, 3, 5, 6 and 7 with reference to the
material covered up to the last class in the first term.
Factum/Moot - Handed Out: Monday, February 22, 2010
c.
Factum Due: Monday, March 8, 2010
10%
Moots: Thursday, March 11- Thursday, March 18, 2010
10%
Final Examination - Friday, April 16, 2010
50%
This examination will be designed to test all of the Objectives, with reference to the material that
has been covered throughout the year butwith special emphasis on the second term.
The two examinations will beopen-book except that no published Annotated Codes, library materials or
electronic devices may be brought into the examination room.
Each exercise will be assigned a letter grade as set out below. For the purpose of determining the final
course grades, each designation will be assigned the following numerical value:
A+ = 13
A = 12
A-=11
B+ = 10
B = 09
B- = 08
C+ = 07
C = 06
= 05
D+ = 04
D = 03
= 02
F+ = 01
F = 00
The numerical grades will then be combined proportionately and the course grades ascertained as
follows:
Example:
A+
A
AB+
B
=12.50-13.00
C+
= 6.50-
=11.50-12.49
c
= 5.50-
6.49
=10.50-11.49
c-
= 4.50-
5.49
4.49
B-
=
9.50-10.49
D+ = 3.50-
=
8.50-
9.49
D
=
=
7.50-
8.49
F
= 0.00-
7.49
1.50 - 3.49
1.49
Christmas Exam (30%)
B+ =
Factum (10%)
Moot (10%)
B
=
9x .10 = 0.90
B- =
8x .10 = 0.80
Final Exam (50%)
c+ =
7x .50 = 3.50
lOx .30 = 3.00
"
8.20 = B
While every effort will be made to adhere to this marking scheme, it may be necessary to make
adjustments in order to meet Faculty of Law grading regulations and expectations.
Please note that, in accordance with University guidelines, a final grade of A+ is worth the same as an A,
i.e. 4.0. However, an A+ will be recorded on your transcript.
FEEDBACK
Written feedback will be provided on each examination, and a sample answer may be provided for the
examinations as well.
116
Law 410: Crime: Law and Procedure 2009-10
Syllabus
N.B. Additional recent cases may be added by way of handout.
Text: Learning Canadian Criminal Law, 11th Edition, Stuart and Delisle
Supplemental Text: Essentials ofCanadian Law: CriminalLaw, 3rd Edition, Kent Roach
ofCases in the supplemental text for further infonnation on specific cases.
Topics and Readings
Text
1. Aims and Scope of Criminal Law
• Ouimet Report (1969)
• LRC Reports (1974,1976)
• R. v. Heffer (1970) (Man. C.A.)
• R. v. Malmo-Levine (2003) (S.C.C.)
• R. v. Labaye; Kouri (2005) (S.C.C.)
• Truths of Criminology
• Doob &Webster, Sentence Severity &Crime
2. Sources of Canadian Criminal Law
112-135
1-10.23-24 Chapter 1
21-27
1
' Jw50)SC°C °fneW C0mm°n LaW °ffences"FrW v' Fed°ruk
2-4
•
The Constitution Act, 1867
• & v. ifewry (2005) (S.C.C.)
Overview
1-20
• The Advent ofCommon Law Criminal Law -R v Sedlev
(1663)
y
(b) Doctrine of Preraftent
Supp.Text
112-113
113-114
Handout
114-120
120-128
129-132
133-135
(a) Offence Definition
• Criminal Code - s. 8 &9,177,162
See Table
(Overview
1-20) '
4-5
23-24
6-10
3. Structure ofthe Criminal Justice System
(a) The Adversary Sy^m: Roles and Kesponsihilifipg
• The Adversary System
• Coughlan, 'The "Adversary System': Rhetoric or Reality"
• Came Menkel-Meadow, Portia in aDifferent Voice
• Mme. J. Wilson, Will Women Judges Really Make aDifference?
• Aboriginal People and CriminalJustice, LRC Rep. 34 (1991)
• Rupert Ross, Dancing with a Ghost
•
•
•
•
R.V.R.D.S (1997) (S.C.C.)
R. v. Spence (2005) (S.C.C.)
R. v. Hamilton (2004) (Ont. C.A.)
R. v. Kubassek (2004) (Ont C.A.)
(Overview
1-20)
137-172
137-140
140-143
143-148
148-152
152-154
154-157
157-164
165-169
169-175
253-258
117
Topics and Readings
Text
(b) The Court Svstem and Classification of Offences
• Procedural Classification of Offences
58-62
« LRC, The Jury in Criminal Trials
62-63
Supp.Text
58-63
(c) Burden of Proof: Reasonable Doubt
-
Woolmington v. £>.P.P.(1935)(H.L.)
-
R. v. S.(J.H) (2008) (S.C.C.)
• R. v. Mullins-Johnson (2007) ((Ont. C.A.)
•
R. v. Lifchus (1997)(S.C.C.)
R. v. Starr (2000)(S.C.C.)
4. Statutory Interpretation in Criminal Law
10-16,
22-28
(a) General Principles
•
•
Re S.83.28 ofthe C.C. (2004) (S.C.C.)
R. v. Clark(2005) (S.C.C.)
(b) Strict Construction
• Interpretation Acts (RSC 1985 & RSO 1980)
• Re: Xerox ofCanada(19.80) (Ont. C.A.)
- R. v. Goulis (1981) (Ont. C.A.)
•
-
R v. Pare (1987) (S.C.C.)
R v. Mac (2001) (Ont. C.A.)
10-16
10-11
11-16
17-23
17-18
18-19
19-22
22-23
5. The Criminal Act (Actus Reus)
(a) General Principles
72-73
189-195
•
C. Howard, Criminal Law
189
•
R v. Thome (2004) (N.B.C.A.)
Burchell et al, South African CriminalLaw and Procedure
190-193
194
•
J. F. Stephen, A History ofthe Criminal Law in England
194-195
(b) Specific Examples/Illustrations
• Causing a Disturbance
o Rv.Lohnes (1992) (S.C.C.)
• Deejning Provisions
• Vicarious Liability
o R v. Burt (19S5) (Sask. QB.)
•
75-78
17
197-225
197-203
203-204
204-208
Possession
o
o
o
o
o
Marshall v. R. (1969) (Alta. C.A.)
R v. Terrence (1983) (S.C.C.)
Re Chambers and the Queen (1985) (Ont. C.A.)
R. v. Pham (2005) (Ont. C.A.)
R v. Chalk (2007) (Ont. C.A.)
209-212
212-215
Handout
216-223
223-225
118
i
Topics and Readings
Text
Supp.Text
6. Special Issues: Actus Reus
(a) Consent in the Context of Assault/Sexual Assault
226 249
• Bolduc and Bird v. R. (1967) (S.C.C.)
- R v. Cuerrier (1998) (S.C.C.)
• R v. Jobidon (1991) (S.C.C.)
238 242
243 24Q
226-238
(b) Omissions
258-305
• Introduction
• Moore v. R (1979) (S.C.C.)
87 Ql
258 264
271279
• R v.Hayes (2003) (Ont. C.A.)
283-290
• Fagan v. Metropolitan Police (1968) (U.K.)
o^ 9*0
•
•
•
269-271
279-282
290-293
293-305
* v. M//er (1983) (H.L.)
R. v. Thornton (1991) (Ont. C.A.) and (1993) (S.C.C.)
R. v. Browne (1977) (Ont. C.A).
R. v. Peterson (2005) (Ont. C.A.)
(c) Acting Through Innocent A^nt
• R. v. Michael (1840) (C.C.C.R.)
323-324
(d) Causation
249-253.
t ♦ a ♦•
•
Introduction
•
Examples:
o
o
o
o
o
o
o
o
325-360
^zz
R. v. Williams (2003) (S.C.C.)
Smithers v. R. (1978) (S.C.C.)
R v. Nette (2001) (S.C.C.)
7?. v. Talbot (2007) (Ont. C.A.) and Charter Note
R. v. Menezes (2002) (Ont. S.C.J.)
R v.Smith (1959) (U.K.)
& v. Blaue (1975) (U.K.)
The Queen v. Bingapore (1974-5) (S. Aus. H.C.)
(e) Voluntariness
•
•
R. v. Lucki (1955) (Sask. Pol. Ct.)
R. v. Wolfe (1975) (Ont. C.A.)
R.v. Swaby (2001) (Ont. C.A.)
R. v.Ryan (1967) (Aus. H.C.)
o Kilbride v. Lake (1962) (N.Z.S.C.)
249-253
326-332
338-346
346-347
355 360
351-353
333-336
354-355
306-322
Introduction
Examples:
o
o
o
o
93-101
^FTT^
*
104-105
312 313
313-314
314-306
316-318
3\^322
119
4
Topics and Readings
7.
Text
Supp.Text
The Fault Requirement (Mens Rea)
a.
Introduction
361-363
141-144,
b.
Subiective/Obiective Distinction
363-364
144-146
•
•
•
Rv.Hundal (1993) (S.C.C.)
R. v. Theroux (1993) (S.C.C.)
R. v. Mulligan (1976) (Ont. C.A.)
R. v. Ortt (1969) (Ont. C.A.)
364-365
146-147
365-366
366-367
367-368
8. Subjective Offences
154-161,
170-73 '
•
•
Subjective Awareness Guaranteed by Charter for Few Crimes
3 Types of Crimes & CommonLaw Presumption
a. Purpose. Intention and Knowledge
Simpson v. R. (1981) (Ont. C.A.)
R.
R.
R.
R.
v.
v.
v.
v.
Edelenbos (2004) (S.C.C.)
Hibbert (1995) (S.C.C.)
Kerr (2004) (S.C.C.)
Buzzanga andDurocher (1979) (Ont. C.A.) and Note
b. Recklessness and Willful Blindness
R. v. Currie (1975) (Ont. C.A.)
R. v. Duong (1998) (Ont. C.A.)
R. v. Buzzanga (see above)
Blondin (1971) (B.C.C.A.)
R. v. Pappajohn (1980) (S.C.C.)
Sansregret v.R. (1985) (S.C.C.) and Annotation
c.
Sexual Assault
•
•
•
•
-
Background: Rape Laws in Context
R. v. Chase (1987) (S.C.C.)
R. v. Bulmer (1987) (S.C.C.)
R. v. Davis (1999) (S.C.C.) .
R. v. Ewanchuk (1999) (S.C.C.)
R. v. Cornejo (2003) (Ont. C.A.)
466-467
468-469
428-430
430-434
476-481
481-488
489-498
162-165
507-509
510-513
489-498
503-507
596-608
609-618
589-591
619-624
624-628
629-631
660-674
675-679
43-52
120
Topics and Readings
Text
Supp.Text
9. Objective Offences
a.
•
•
-
Criminal Negligence
O'Grady v. Sparling (1960) (S.C.C.)
Tutton (1989) (S.C.C.)
Anderson (1990) (S.C.C.)
513-514
514
515-525
527-530
b. Marked Departure and Predicate Offences
•
•
•
R. v. Hundal (1993) (S.C.C.)
Creighton (1993) (S.C.C.)
R. v. Beatty (2008) (S.C.C.)
Rv.F.(J.)(200$) (S.C.C.)
c.
Predicate Offences
•
•
•
DeSousa (1992) (S.C.C.)
Creighton (1993) (S.C.C.)
Krushel (2000) (Ont. C.A.)
Problems and Comment
531-539
539-548
546 557
557„55g
558_566
567-574
575-577
511-51%
10. Strict and Absolute Liability
•
•
•
•
•
•
Beaver v. R. (1957) (S.C.C.)
R. v. SaultSte. Marie (1978) (S.C.C.)
R. v. Wholesale Travel (1991) (S.C.C.)
B.C. Motor Vehicle Reference(\986) (S.C.C.)
R. v. Cancoil Thermal (1986) (Ont. C.A.)
R. v. Transport Robert (2003) (Ont. C.A.),lv to appeal refused
Levis (City) v. Tetrault (2006) (S.C.C.) and Note
184-197
368-374
374-383
383-390
396-404
404-409
417-421
421 -422
11. Burden of Proof: Charter Issues
• Oakes (1986) (S.C.C.)
• Downey (1988) (SCC)
• Steve Coughlan, Doubt Mountain
83.87
88.89
89_92
- Wholesale Travel (1991) (S.C.C.)
409-416
81-86
12. Mistake of Fact and Law
•
•
•
Policy Considerations
Campbell (1972) (Alta Dist. Crt.)
Prue &Baril (1979) (S.C.C.)
Dorosh (2004) (Sask. C.A.)
Drainville (1991) (Ont. Prov. Ct.)
Levis v. Tetrault(2006) (S.C.C.)
711-713
713-718
719-723
723-727
727-733
733-736
121
Topics and Readings
13.
Text
Supp.Text
Mental Disorder
•
•
•
14.
Background
Cooper (1979) (S.C.C.)
Kjeldson (1981) (S.C.C.)
Abbey (1982) (S.C.C.)
742-751
751-762
762-763
763-765
Intoxication
•
Beck and Parker, "The Intoxicated Offender"
826-828
•
Bernard(1988) (S.C.C.) [Omit pp. 842 - 848 (Part III Stare
Decisis)]
Daviault (1994) (S.C.C.) [Omit pp. 851 ("The passage of...) to
854 (...all crimes of general intent)]
R. v. Daley (2007) (S.C.C.)
828-850
•
850-861
865-866
•
15. Entrapment
•
•
R. v. Mack (1988) (S.C.C.)
R. v. Swan (2009) (B.C.C.A.)
996-1006
Handout
122
All First Year Students
RE: Law 411 - Dispute Resolution I
Winter 2010
Law 411 will run during Block Week from Monday, January 4th through Friday
January 8 , inclusive. We will hold sessions each day from 8:30 a.m. to 5:00 p.m.,'
with a break for lunch. The whole class will meet on Monday, January 4th, at 8:30
a.m. in MFH Room 162. At that time, we will distribute a detailed timetable course
outline and groups/room lists.
During Block Week, we cover the course materials. The evaluation exercises
will be conducted daily in class while you are role-playing. Additional time will be
provided on Friday, January 8th, for further role-play evaluations.
Much of Interviewing and Counselling involves role-play and other exercises
that assume knowledge of the readings for the course. Since classes consume most
of each day during Block Week, you will not have much time for reading during that
week. After an 8-hour day, we doubt that you will feel like reading in any event. We
recommend that you complete the required readings before Block Week. Given that
neither text focuses to any great extend (or to any extant, for that matter) on analysis
of legal doctrine, you might find the required readings to be a pleasant change.
The required materials for the course are as follows:
1.
2.
3.
Binder, Bergman &Price, Lawyers asCounsellors (Bookstore)
Course Materials - 2009 Edition (Bound &Copied)
Additional materials to be provided by handouts during class.
Enjoy your holiday break!
Rhoda Dobler & Caroline Lee
123
UNIVERSITY OF
CALGARY
Faculty of Law
Law 411
Dispute Resolution I
January 4-8, 2010
Students1 Manual
Edition: Winter 2010
Edited by
Caroline Lee
Rhoda Dobler
Prepared for the exclusive use ofstudents in Law 411: Dispute Resolution
atthe Faculty of Law, University ofCalgary
124
Table of Contents
INTERVIEWING
1
Interviewing 1-Practice Feedback
1
Activity Plan
Consultation Problems for Lawyers
Assignment Schedule
Summary ofPoints to be Learned
i
""'.'.'.'.'.
Z
4
Interviewing 2- Motivation
Activity Plan
Preparation forActivities
.'.'.'".'.'.'".'.'.'.".'.'.'.'.'.'.*.'.'.'.'
Description ofLearning Activities
\
"...1................
Active Listening
7
Interviewing 3-Active Listening
Activity Plan
Preparation for Activities
I'l'............"......
Active Listening Exercises
o
1.............
?
Description ofLearning Activities 3Z!ZZZ"'Z"^!''Z'!"
INTERVIEWING 4-ETHICAL CONSIDERATIONS
Activity Plan
Preparation forActivities
f?
13
""ZZZZZ"Z'"Z
l\
Transcript-Interview of William and Mary Boyd by Fred
II
Description ofLearning Activities
ji
70
INTERVIEWING 5 - QUESTIONING
Activity Plan
Preparation for Activities
17
Description ofLearning Activities
Summary ofPoints to be Learned
1...Z.................
1?
."...
17
I17
Interviewing 6-Beginning Client Conference
19
Activity Plan
Preparation for Activities
Description ofLearning Activities
Critiquer's Instructions
..........I.Z....
....'"....
19
!?
19
19
Interviewing 7-Obtaining aTime Line
Activity Plan
Preparation for Activities
Description oiLearning Activities
1..1....".................
Critiquer's Instructions
23
'.:
??
23
23
Interviewing 8-Theory Development
Activity Plan
Preparation for Activities
Theory Development
Description ofLearning Activities
Theory Development
..."
Theory Development - Exercise #1- Barron) v. Garcia
Theory Development -Exercise #2 -Price V.Oscar's Auto
Theory Development - Exercise #3-R. v. Briggs
:
27
27
2Jn
30
o?
H
H
125
Interviewing 9-Business Transactions
35
Activity Plan
Preparation for Activities
Description ofLearning Activities
.'........"...
Planning Interview Problems for Lawyers ^ZZZZZ'ZZ^''.
Interviewing 10 -Adjourning the Interview
Activity Plan
Preparation forActivities
Description ofLearning Activities
iiii'l'"!!!!".".'.'".'.'.'".'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'
Evaluation Criteria for Interviewing
COUNSELLING
Activity Plan
Description ofLearning Activities
Ethical Considerations
J7
37
38
41
Counselling 1-Ethical Considerations
Preparation forActivities
ff
35
37
of
41
''"'"'ZZ!"Z"Z'ZZ
Counselling 2-The Counselling Process
4!
Zi
V.
41
45
Activity Plan
Preparation for Activities
ZZZ"\[ZZ\\Z"ZZ\".
Description ofLearning Activities
............."..
Counselling Roleplay Exercises
........"....
Counselling Roleplay Exercise #1 - Wilder v. MixZ'ZZ.
Counselling Roleplay Exercise #2 -R. v. Irving
Counselling Roleplay Exercise #3 - Vasquez v. Crowell.
Evaluation Criteria for Counselling
."...
.."....................................
APPENDIX A- CODE OF PROFESSIONAL CONDUCT
A
Jl
45
40
1q
51
54
57
126
Block Week Courses in Dispute Resolution and Trial Advocacy:
Practical Skills Training Taught by Practicing Legal Professionals
The University of Calgary Faculty of Lawprovides students with an excellent,
professional education that prepares them to practice law in both traditional and non-
traditional settings. In order to ensure ourgraduates have the expertise and knowledge to
work in increasingly complex corporate and legal environments, we have a
comprehensive skills program.
The highlight of our skills program is the Block Week program offered to our
students in each year of study. The Block Weekis the first week of January, the week
before the Winter Term starts. Thisis a unique program; the University of Calgary has
the only law school in Canada to dedicate a week during the academic year to practical
skills, taught by practicing lawyers, judges and criminal justice professionals.
First and second year students are taught how to resolve conflicts before going to
court in Law 411 (Dispute Resolution I) and Law 681.18 (Dispute Resolution II). In
Dispute Resolution I, students getanintroduction to dispute resolution, including conflict
analysis, fact-finding through client interviewing, an overview of dispute resolution
processes, client-centered client counselling, and ethical issues. Dispute Resolution II is
an intensive course that explores the wide variety of methods for resolving disputes,
including negotiation, mediation, arbitration, collaborative proactive and court-assisted
dispute resolution processes such as neutral evaluation, judicial dispute resolution
conferences, and pretrial conferences. The course will focus on negotiation, as it is the
cornerstone for most alternative dispute resolution processes, and it culminates with a
simulated negotiation.
As it is not always possible to resolve conflicts before trial, third-year students are
taught how to prepare and present a case at trial in Law 639 (Trial Advocacy). The
course encourages the students to learn by doing all the skills necessary to argue a trial.
Students have a chance to practice examining and cross-examining witnesses, entering
evidence, impeaching witnesses, and presenting opening and closing arguments.
Members of the Calgary Police Service join the students to act as professional police
witnesses. Judges and practicing lawyers teach the course. The instructors are joined each
year by an outstanding advocate who is the Milvain Chair in Advocacy, sponsored by the
Calgary Bar Association. Mona T. Duckett, Q.C., was this year's Milvain Chair. The
Trial Advocacy courseculminates with a full civil trial, criminal trial, or administrative
hearing at the Calgary Courts Centre.
Special thank you to all those who helped instruct and coach during Block Week:
Charlene Anderson, Robert Armstrong, Constable Tanya Bagnell, The Honourable Judge
P.B. Barley, Michael Bates, Gary Befus, Bina Border, The Honourable Judge A.J.
Brown, J. Paul Brunnen, Deni Cashin, Ryan Claxton, Katie Clayton, Mary Comeau, Peter
A. Crisfield, Rhoda Dobler, Mona T. Duckett, Q.C., Gregory Dunn, Sean E.D. Fairhurst,
James Floyd, EleanorFunk, Wayne D. Gillis, Laurie A. Goldbach, Constable Cam
Gogol, ShannonHayes, Chareles Hotzel, Constable Travis Juska, Constable Dave
Keagan, Susan Kennedy, Constable JeffKlinger, Dennis Langen, Elise Lavigne, James
M. Lutz, Constable Murray Maclver, The Honourable Justice A.D. Macleod, Adam May,
Ken McCaffrey, Jordan McJannet, Laurie McMurchie, The Honourable J. Major, Karen
B. Molle, Susan Mulligan, Brian Mustard, Molly Naber-Sykes, Constable Gary
127
Novokowsky, Staff Sergeant Cliff O'Brien, Constance O'Laughlin, Photini Papadatou,
Valerie Prather, Gavin Price, Gulu Punia, Gwen K. Randall, Janice Rea, Lloyd
Robertson, Stephen T. Robertson, Kim Ross, Bernard Roth, Elaine Seifert, Jennifer
Shaften, Sabri M. Shawa, Deborah Shennette, Gord Sterchi, Constable Mike
Sushelnitsky, Ann Tierney, Kathleen Wells, Constable Steve Weninger, Stephen Wojcik,
and Gordon Wong, Q.C.
128
LAW 503: ADMINISTRATIVE LAW (Section 01)
COURSE DESCRIPTION
FALL 2009
Professor: Shaun Fluker
Office No: 4340
Telephone: 403.220.4939
E-Mail: sfluker@ucalqarv.ca
1.
INTRODUCTION AND STATEMENT OF OBJECTIVES
Canada, like all modern western democracies, is run in significant part by administrative agencies and
public officials. Many decisions which affect the everyday lives of Canadians are made by
administrative agencies and public officials acting pursuant to legislation and regulations. These
bodies areoften referred toas statutory decision makers orstatutory delegates andexamples of their
decision making include decisions related toemployment, human rights, incarceration, immigration,
child welfare, the use of property, securities, competition, the development of natural resources, the
transmission of electricity, taxation, and admission to the professions and trades. Some of the
decisions made bythese statutory decision makers confer benefits or licenses on individuals while
others impose restrictions on otherwise lawful activities. Some of the decisions resemble court
adjudications while others are more like decisions made in the political process.
This course introduces students to the general structure of administrative decision-making in Canada:
how public administrators obtain power and how that power isexercised both at the level ofindividual
adjudication and in the establishment of public policy and general rule-making. It also introduces
students to judicial oversight on the exercise of administrative power. The course examines the
procedures that courts require of administrative agencies and public officials in their decision-making
as well as the substantive grounds on which courts may review the decisions of such agencies and
officials.
An introductory course in administrative law cannot be comprehensive or complete on the law
applicable to particular administrative agencies. It must always be remembered that the statute law
relating to administrative agencies changes from one entity to another. Further, the law is in a
constant state of flux because of changes in judicial attitudes, amendments to enabling legislation
and, more commonly, following judicial interpretation of the enabling statute. The object of this course
is to assist students in developing a basic working knowledge of administrative decision-making and
of the general framework of judicial review of such decision making in Canada. Students will be
required to critically apply the general framework to various factual settings for the purpose of
recognizing administrative law issues and giving reasoned advice and judgments.
2.
REQUIRED MATERIALS
a.
b.
3.
Evans, et al., Administrative Law: Cases, Text and Materials. Toronto: Emond-Montgomery
Fifth Edition, (D. Mullan) 2003. (Available at the Bookstore.)
Supplemental materials posted on Blackboard.
CLASS LOCATION AND HOURS
Tuesdays and Thursdays 10:30 to 11:50am in MFH Room 3360.
4.
EVALUATION
a.
Optional Mid-Term Examination - held in class - worth 35%.
129
b.
Final Examination - open book - worth 65% or 100% depending upon whether a student
chooses to write the optional mid-term.
Dates and times of these examinations are to be set by Faculty Council and shown on the
Assignment and Final Examination Schedules.
NOTE:
a.
The 65% final examination will beof the same length and embrace the same questions as
the 100% final examination.
b.
In the event that an examination comprises more than one question, each question will be
graded and recorded separately. For those writing the mid-term optional examination, mid
term questions will be weighed out of 35% and final examination questions will be weighed
out of 65% to produce the final course grade.
5.
METHOD OF ARRIVING AT FINAL COURSE GRADE
Each question on the Examinations will begraded using one of the following designations:
A+
A
AB+
B
B-
-
4.3
4.0
3.7
C+ C
C- -
2.3
2.0
1.7
3.3
3.0
2.7
D+ D
F
-
1.3
1.0
0.0
final coursei grades will be determined as follows:
6.
A+
A
AB+
=
=
=
B
B-
=
4.01 - 4.30
3.85 - 4.00
3.50 - 3.84
3.15-3.49
2.85 - 3.14
2.50 - 2.84
C+
C
CD+
=
=
=
=
D
F
=
=
2.15-2.49
1.85-2.14
1.50-1.84
1.15-1.49
0.50-1.14
0.00 - 0.49
FEEDBACK
Feedback will be provided to students in the form of written comments on student examination papers.
130
LAW 503: ADMINISTRATIVE LAW (Section 01)
COURSE SYLLABUS
FALL 2009
55= SSK5
KL. S53S3SS-
CLASS TIME:
Tuesday and Thursday 10:30 am to 11:50 am
This syllabus is subject to change as course circumstances warrant.
References are to Evans,
al., Administrative
Law: Cases, Text and ^aienais,
Materials TorontoEmond-Montgomery,
Fifth etEdition,
2003 (D. Mullan).
ioronto.
I.
THE ADMINISTRATIVE STATE - September 8
The Administrative State
II.
AREGULATORY AGENCY - September 10 and September 15
Barry Barton 'The Theoretical Context of Regulation"
NEB, ASC, ERCB, CRTC web sites
Rulemaking
Ainsley Financial v. Ontario Securities Commission (1994) (Ont CA)
Ontario Task Force on Securities Regulation
Standing
y
R|9pWna .
TIT,
BiackBoard
684~677
Rfic ftQ1
^.V691
1246-1251
III. OVERSIGHT OF REGULATORY AGENCIES: THE RULE OF LAW AND THF
ADMINISTRATIVE STATE - September 17
The Honourable Chief Justice McLachlin, The Roles of Administrative
Tribunals and Courts in Maintaining the Rule of Law" (1999)
Political and Administrative Redress of Individual Grievances
Courts and Administrative Agencies
BiackBoard
21%>
22 27
The Rule of Law and the Administrative State
27-33
IV. PROCEDURAL FAIRNESS: HISTORICAL OVERVIEW - September 22
Introduction
Historical Overview
~?"97
Notef50" V' Ha,dimand-Norfo,k Police Commissioners (1979) (S.C.C.) 107-U1
Elaborations of a New Doctrine
V. THE THRESHOLD FOR PROCEDURAL FAIRNESS - September 24
Might v. Indian Head School Division No. 19 (1990) (S.C.C.)
11I'll?
1 To-116
116-128
128-132
131
VI.
Dunsmuir v. New Brunswick (2008) (S.C.C.) (paras. 77-117)
Irving Shipbuilding v. Canada (2009) (FCA)
Canada (Attorney-General) v. Inuit Tapirisat of Canada (1980) (S.C.C.)
Homex Realty and Development Co. Ltd. v. Wyoming (1980) (S.C.C.)
BiackBoard
BiackBoard
132-140
140-143
Notes
143-144
Canadian Association of Regulated Importers v. Canada (Attorney
General) (1993) (FCTD), rev'd (1994) (FCCA)
147-151
THE THRESHOLD FOR PROCEDURAL FAIRNESS - September 29
Re Webb and Ontario Housing Corp. (1978) (Ont. C.A.)
VII.
153-157
Note
157-158
Lazarov v. Secretary of State of Canada) (1973) (Fed. C.A)
162
Notes
162-164
Non-Dispositive Decisions
Legitimate Expectation
Reference re Canada Assistance Plan (1991) (S.C.C.)
Mount Sinai Hospital v. Quebec (2001) (S.C.C.)
166-168
183-186
186-188
195-199
CONTENT OF PROCEDURAL FAIRNESS - October 1
Introduction
285-287
Rabin (Note particularly Board of Curators of the University of Mo. v.
Horowitz (1978))
293-296
Baker v. Canada (Minister of Citizenship &Immigration) (1999) (S.C.C.)
57-72
VIII. STATUTES ON PROCEDURE / PRE-HEARING ISSUES - October 6
Introduction
Notes
302
332-333
Administrative Procedures and Jurisdiction Act (Alberta)
Authorities Designation Regulation (Alberta)
ASC Rule 15-501 Rules of Procedure for Commission Proceedings
Notice
336-342
Discovery
Delay
352-354
361-362
Wachtler v. Alberta College of Physicians and Surgeons (2009)(ABCA)
BiackBoard
Disclosure and Official Notice (Note in particular Kane v. Board
of Governors of U.B.C. (1980) (S.C.C.))
Access to Agency Information
Re Napoli and Workers' Compensation Board (1981) (B.C.C.A.)
405-406
410
411 -414
Notes
IX.
BiackBoard
BiackBoard
BiackBoard
,
414-416
HEARING ISSUES - October 8
Oral Hearings
Khan v. University of Ottawa (1997) (Ont. C.A.)
Open Hearings
Right to Counsel
366-367
372-379
379-381
381
132
X.
XI.
Re Howard and Presiding Officer (1985) (Fed. C.A.) and Note
394-398
Notes
399-401
Admissibility of Evidence
453-456
Cross-Exam ination
456
Re Strathcona No. 20 and MacLab Enterprises (1971) (Alta. S.C. A.D.)
459-461
POST-HEARING ISSUES - October 13
Baker v. Canada (Minister of Citizenship & Immigration) (1999) (S.C.C.)
Statutory duties to give reasons
70-72
334
Notes
469-474
Notes
481-484
Zeliony v. Red River College (2007) (MBQB)
Airport Self Storage v. Leduc (2008)(ABQB)
BiackBoard
BiackBoard
INSTITUTIONAL DECISION MAKING - DECIDING WITHOUT HEARING AND
DELEGATION - October 15
Introduction
485-487
Willis, "Delgatus Non Potest Delegare"
Vine v. National Dock Labour Board (1957) (Eng. H.L.)
Notes: Morgan v. Acadia University'(1985) (N.S.S.C.)
487-489
490-491
491-493
International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst
Packaging Ltd. (1990) (S.C.C.)
XII.
498-523
BIAS - October 20 and October 22
Introduction
571-574
Pecuniary and Other Material Interests
574-575
The General Test
581 -593
Baker v. Canada (Minister of Citizenship & Immigration) (1999) (S.C.C.)
Statutory Authorization
Brosseau v. Alberta (Securities Commission) (1981) (S.C.C.)
72-74
593
593-597
Notes
597-598
2747-3174 Quebec v.Quebec (Regie despermis d'alcool) (1996) (S.C.C.)612-618
Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) (1990) (S.C.C.) 633-638
Newfoundland Telephone Co. v. Newfoundland (Board of
Commissioners of Public Utilities) (1992) (S.C.C.)
642-650
Notes
m
650
Pelletier v. Canada (2008) (FCA)
BiackBoard
Waste Management of Canada v. Thorhild (2008) (ABQB)
BiackBoard
XIII.
INDEPENDENCE-October 27
Independence
650-653
Canadian Pacific v. Matsqui Indian Band (1995) (S.C.C.)
662-670
2747-3174 Quebec v.Quebec (Regis despermis d'alcool) (1996) (S.C.C.) 672-673
Ocean Port Hotel Ltd. v. British Columbia (2001) (S.C.C.)
BiackBoard
133
XIV. OPTIONAL MID-TERM - October 29
XV. JUDICIAL DEFERENCE AND THE STANDARD OF REVIEW - November 3
The Honourable Justice Lebel, "Some Properly Deferential Thoughts on
Deference"
BiackBoard
CUPE, Local963 v. New Brunswick Liquor Corporation (1979) (S.C.C)
714-720
Notes
720-723
XVI. STANDARD OF REVIEW ANALYSIS - November 5,10 and November 17
Canada (A. G.) v. Mossop (1993) (S.C.C.)
733-743
Notes
743-744
Pushpanathan v. Canada (Citizenship & Immigration) (1998) (S.C.C.)
790-800
Notes
800-801
Extending the reach of deference theory: statutory appeals
763
Canada (Director of Investigation &Research) v. Southam (1997)(S.C.C.) 769-779
Notes
779-780
Law Society of New Brunswick v. Ryan (2003) (S.C.C.)
780-785
Trinity Western University v. British Columbia College of Teachers (2001) 801-811
Notes
811-812
Dr. Q. v. College of Physicians and Surgeons of British
Columbia (2003) (S.C.C.)
Some Concluding Thoughts
819-822
823-824
XVII. SELECTING THE STANDARD OF REVIEW - November 19, 24 and November 26
Introduction
701
The Preliminary Question Doctrine
Toronto (City) v. C.U.P.E., Local 79 (2003) (S.C.C.)
705-706
BiackBoard
ATCO Gas & Pipelines v. Alberta Energy & Utilities Board (2006) SCC
Para. 1-34; 88-110
BiackBoard
Dunsmuir v. New Brunswick (2008)(S.C.C.)
Para. 1-16; 24-76; 119-end.
What does Dunsmuir teach?
BiackBoard
BiackBoard
Macdonald v. Mineral Springs Hospital 200$ ABCA 273
Majority and para. 73-102 of dissenting judgment
Gahir v. Alberta (WCB)2009 ABCA 59 para. 1-15; 22-36
BiackBoard
BiackBoard
Canada (Citizenship and Immigration) v. Khosa (2009) (S.C.C.)
BiackBoard
BiackBoard
XVIII.APPLYING THE STANDARD OF REVIEW- December 1
National Corn Growers v. Canada (Import Tribunal) (1990) (S.C.C.)
Canada (A.G.) v. Mossop (1993) (S.C.C.)
867-885
825-839
134
Notes
839-841
Canada (Director of Investigation & Research) v. Southam (1997)(S.C.C.) 860-867
Law Society of New Brunswick v. Ryan (2003) (S.C.C.)
785-788
Dunsmuir v. New Brunswick (2008)(S.C.C.)
BiackBoard
Canada (Citizenship and Immigration) v. Khosa (2009) (S.C.C.)
BiackBoard
Taub V. IDA (2009) ONCA
BiackBoard
XIX. REVIEW-December 3
135
LAW 503: ADMINISTRATIVE PROCESS
COURSE DESCRIPTION
Fall 2009
Professor:
Alice Woolley
Office:
Room 4313
Office Hours:
By appointment.
Telephone:
220-4013
E-mail:
awoolley@ucalgary.ca
1•
INTRODUCTION AND STATEMENT OF OBJECTIVES
Can\Cd0aUrhnwnnnhii,CeH *^Zf t0 the 9eneral structure of administrative deoision-makinq in
2.
REQUIRED MATERIALS
a.
SS^^SSKSS&XSUXSXSSS'^
136
2
b.
3.
Supplementary materials are posted on Blackboard
CLASS LOCATION AND HOURS
Tuesdays and Thursdays, 1030-1150, MFH 3370
4.
EVALUATION
a.
5.
Optional Mid-Term Examination - open book - held in class - worth qw
METHOD OF ARRIVING AT FINAL COURSE GRADE
Each question on the Examinations will be graded using one ofthe following designations:
A+
=
A
=
AB+
B
BC+
C
CD+
D
DF+
F
=
=
=
=
—
8
7
=
6
5
=
=
=
10
9
=
—
—
13
12
11
4
3
2
1
0
sszssrr.'ssirrx'-""A+
=
A
AB+
B
BC+
C
CD+
=
D
=
F
=
=
=
=
=
=
=
=
=
12.50-13.00
11.50-12.49
10.50-11.49
9.50-10.49
8.50-9.49
7.50-8.49
6.50-7.49
5.50-6.49
4.50-5.49
3.50-4.49
1.50-3.49
0.00-1.49
137
SKK^MSisasiassar--- - - A+
A
AB+
B
BC+
C
CD+
D
F
6.
=
=
=
=
=
=
=
=
=
=
=
=
12.50-13.00
11.50-12.49
10.50-11.49
9.50-10.49
8.50-9.49
7.50-8.49
6.50-7.49
5.50-6.49
4.50-5.49
3.50-4.49
1.50-3.49
0.00-1.49
FEEDBACK
Feedback wi,l be provided to students in the form of written comments on student examination
138
LAW 503: ADMINISTRATIVE LAW
SECTION «E7\N0
COURSE SYLLABUS
FALL 2009
Professor:
Alice Woolley
Telephone:
403.220.4013
Email:
awoolley@ucalgary.ca
Location:
Room 3370
CLASS TIME: Tuesdays and Thursdays 10:30-11:50
PLEASE NOTE: This syllabus is subject to change as course circumstances warrant.
2SKS£^
re^ndMaterials, Toronto:
INTRODUCTION - September 8
No assigned readings
II.
aTndESAeZTer T^ ^ '" THE°RY AND ,N PRACTICE "September 10
The Administrative State
?lrry^a,rt0n The Theoretica' Context of Regulation"
J£L H
^S'elThe,Lp9a!
Pr°feSSi0nRegulation
and La^er
Re^on(unin tnCanada"
in ^
Lawyers Ethics and Professional
pp 49-55-57
"Pr*ohLoo-
Education Requirements"); 63-81; 84-88**
AD^^^^^
P Pre-adm,ss,on
™ ™* 0? UW AND THE
Political and Administrative Redress of Individual "novances
gISs
Courts and Administrative Agencies
IV.
B'TT
21-22
The Rule of Law and the Administrative State
f7.33
PROCEDURAL FAIRNESS: HISTORICAL OVERVIEW - September 22
Introduction
Historical Overview
89-97
99-103
139
Kef°" "' Ha'dimand-Norfolk™<* Commissioners (1979) (S.C.C.)
Elaborations ofa New Doctrine
V.
THE THRESHOLD FOR PROCEDURAL FAIRNESS I- September 24
Notes'"' ManHeadSch001 DMs'onNo. 79(1990) (S.C.C.)
°u™muir*Ne" Brunswick (2008) (SCC) para. 77-117
Canada (Attorney-General) v. Inuit Tapirisat ofCanada (1980) (SCCA
Home* RealtyandDevelopmentCo. ltd. v. Wyoming {S)U%C?
/r/V/nflr Shipbuilding v. Canada (2009) FCA
107-111
111-113
113-116
116-128
128-132
Blackboard
132-140
140-143
143-144
147-151
BiackBoard
VI.
THE THRESHOLD FOR PROCEDURAL FAIRNESS II - September 29
Note^3nd0nt3ri0H°USin9C°rp' (1978) (0nt CA>
Hofes°VV' Secretafy°fStateofc^ada) (1973) (Fed. C.A)
Non-Dispositive Decisions
Legitimate Expectation
Reference Re Canada Assistance Plan (1991) (S CC)
Mount Sinai Hospital v.Quebec (2001) (SCC) ' '
Moreau-Berube v. New Brunswick (2002) SCC
Para. 3-14, 34, 74-83
153-157
157-158
162
162-164
166-168
183-186
186-188
195-199
BiackBoard
VII. CONTENT OF PROCEDURAL FAIRNESS - October 1
Introduction
BS^g^111^&0ard°fCurat0rs 0fthe Univers'«y°fM* v.
285-287
Baker v. Canada (Minister ofCitizenship &Immigration) (1999) (S.C.C.) 57-7296
VIII.
STATUTES ON PROCEDURE /PRE-HEARING ISSUES - October 6
Introduction
Notes
Administrative Procedures and Jurisdiction Act (Alberta)
Authorities Designation Regulation (Alberta)
Notice
'
Discovery
Delay
Wachtler v. Alberta College of Physicians and Surgeons 2009 ABCA
Disclosure and Official Notice (Note in particular Kane v. Board
ofGovernors ofU.B.C. (1980) (S.C.C.))
302
332-333
BiackBoard
BiackBoard
336-342
352-354
361-362
BiackBoard
405-406
140
Access to Agency Information
ReNapoliandWorkers'Compensation Board (1981) (B.C.CA.)
4i?-414
414-416
IX.
HEARING ISSUES - October 8
Oral Hearings
Khan
v University ofOttawa (1997) (Ont. C.A.)
Open Hearings
2£*£
Right to Counsel
Re Howardand Presiding Officer (1985) (Fed. C.A.) and Note
372-379
379-381
22*98
Admissibility ofEvidence
399-401
Cross-Examination
453-456
Re Strathcona No. 20andMacLab Enterprises (1971) (Alta. S.C. A.D.) 4^9-461
[Class Cancelled October 13]
X.
POST-HEARING ISSUES - October 15
ffat^
*'™» 0«) (S.CC.) 70-72
Notes
Notes
334
469-474
Zeliony v. Red River College (2007) MBQB oara 1-141
481-484
Airport Self Storage v Leduc 2008 ABQB
'
B,ackBoard
BiackBoard
Xl' d
SK
T
MAKING
- DECID,NG WITHOUT
HEARING AND
DELEGATION
- Friday
October
16, 12-.30PM-1:50PM.
MFH 3370
Introduction
Willis, "Delgatus Non Potest Delegare"
485-487
498-523
XII. BIAS - October 20 and October 22
Introduction
Pecuniary and Other Material Interests
IV ~574
The General Test
fXVSS^
574-575
tim (S.C.C, yVT
Brosseau v. Alberta (Securities Commission) (1981) (S.C.C.)
&4l%%?n °ntari°Se«'ritiss Commission (1995) (Ont CA)
^-597
fSo
nZ£Z
? ResentsAssn.
IC V-Quebec (Regie
(1996)(s'c'.C^Ss!
(SCC)f?2 mI
OldSt. Bonrface
Inc. desPemisd'a°ool)
v. Winnipeg (City) 1990)
141
r%fZT'and Tel?inone c°- v. Newfoundland (Board of
Comm^oners ofPublic Utilities) ^992) (S.C.C.)
642.650
Pelletier v. Canada (2008) (FCA)
650
Waste Management ofCanada v. Thorhild (2008)(ABQB)
BiackBoard
BiackBoard
XIII. INDEPENDENCE-October 27
Independence
Canadian Pad
2747^T7fnCif'f. V- M%SqUilndian
Band <1995) (S.C.C.)
flStfo
•tebec (Regis des permis d'alcool) (1996) (SCC)
Bntish Columbia (2001) (S.C.C.)
673
M' ' B(ackBoard
XIV. OPTIONAL MID-TERM-October 29
XV. JUDICIAL DEFERENCE AND THE STANDARD OF REVIEW -November 3
SfereT^^16 ^^ ^ "S°me Pmper* Deferential Noughts on
CUPE, Loca,963 v. New Brunswick LiquorCorporation (1979) (S.C.C) 71T720
720-723
XVI. INTRODUCTION TO "STANDARD OF REVIEWANALYSIS"-Novembers, 10
Canada (A.G.) v. Mossop (1993) (S.C.C.)
733.743
Notefnathan "• ^"^ (CitiZenSh'P &""Ration) (1998) (S.C.C.)
790-TO
%££%?" ?adn<,°f de,erence theorv: statu«o^ Weals
f£™
LawSociety ofNew Brunswick v. Ryan (2003) (S.C.C)
Vml^
Dr.Q.
v College ofPhysicians and Surgeons ofBritish
Columbia (2003) (S.C.C.)
811"812
Jjy ^estem University, a**Co/UU'cU^eac/,ere (2001) eotsii
Some Concluding Thoughts
819"822
823-824
142
XVII. RETHINKING
THE STANDARD OF REVIEW ANALYSIS - November 19, 24 and
26.
Introduction
The Preliminary Question Doctrine
701
7C)t= 7nR
ItCOG^P'
C;aPE'l°Ca/
(2°03)&Utilities
(S'CC-) Board (2006) SCC B-kBoard
AI CO Gas &Pipelines
v. Alberta?l
Energy
Para. 1-34; 88-110
Dunsmuir v. New Brunswick (2008)(SCC)
Para. 1-16; 24-76; 119-end.
What does Dunsmuir teach?
Macdonald v. Mineral Springs Hospital 2008 ABCA 273
BiackBoard
DI „D M
!,
?!°ar
BiackBoard
Majority and para. 73-102 of dissenting judgment
BiackBoard
Gahir v. Alberta (WCB) 2009 ABCA 59 para. 1-15; 22-36
BiackBoard
BiackBoard
Canada (Citizenship and Immigration) v. Khosa (2009) SCC (Binnie only) Blackboard
XVIII.APPLYING THE STANDARD OF REVIEW- December 1
National Corn Growers v. Canada (Import Tribunal) (1990) (S.C.C)
Canada (A.G.) v. Mossop (1993) (S.C.C.)
Southam (1997)(S.C.C.)
867-885
825-839
j*jj-j*l
Ryan (2003) (S.C.C.)
°°°^7
KhOSa
Blackboard
Taub v. IDA (2009) ONCA
'«>-/«*
XIX. REVIEW - December 3
143
UNIVERSITY OF
CALGARY
FACULTY OF LAW
LAW 681.12 CIVIL PROCEDURE
COURSE OUTLINE - FALL 2009
INSTRUCTORS:
PROFESSOR CHRIS LEVY
Faculty of Law
Room 4380
Phone: (403)210-9725
Email: clevy@ucalgary.ca.ca
SABRI SHAWA
May Jensen Shawa Solomon LLP
800 304 8th Avenue SW
Phone: (403)571-1527
Email: shawas@mjss.ca
GENERAL:
This is a3credit course (39 hours) with classes on Tuesdays and Thursdays evenings from 6:30 - 7:50 in room
MATERIALS:
The course materials will be available on Blackboard and at the Copy Centre. You will receive a copy of
Fradsham s Alberta Rules of Court Annotated 2009 courtesy of Bennett Jones LL.P. You can pick up a
commentary textbook from the Student Services &Admissions Office, Room 2380. New Rules of Court are a
distinct possibihty in 2009/10 We shall address some of the possible new Rules throush Alberta Law Reform
Institute (ALRI) Reports and other documents which are accessible electronically.
^-
OBJECTIVES:
To examine tie practice and the law associated with civil actions in the Court of Queen's Bench of Alberta from
the time of initial client contact through to the commencement of trial.
*
EVALUATION:
1.
2.
Drafting assignment to be assigned 20 October 2009 and due 29 October 2009 (subject to approval): 10%
Final Exam (2 hours) on Friday, December 11, 2009, at 1:00 pm
90o/o
LrinntD,Wi11
Tn^JU
*' SenSeand±atcomputers
y°U maywill
bringnotWith
^0U ^in ™tte*
or Printed
However,
no electronic^material
will be permitted
be allowed
the Examination.
material.
144
-2FEEDBACK:
By in-class review of the drafting assignment and written comments on examination papers.
GRADING
The final exam will be graded on the 12-band scale approved by the University. The drafting assignment will be
graded as pass, marginal or fail (0, 5 or 10%), and will be combined with the final exam grade to yield a course
grade.
GRADE
GRADE POINT
DESCRIPTION
VALUE
A+
4.3
A
4.0
A-
3.7
B+
3.3
B
3.0
B-
2.7
C+
2.3
C
2.0
C-
1.7
D+
1.3
D
1.0
F
0
Excellent - Superior performance, showing comprehensive understanding of
subject matter.
Good - Clearly above average performance with knowledge of subject matter
generally complete.
Satisfactory - Basic understanding of subject matter..
Marginal
Fail - Unsatisfactory performance or failure to meet course requirements.
Note: An A+ grade ultimatelycarries a value of4.0 on the University's scale for purposes ofyour GPA.
ADDITIONAL REFERENCE MATERIALS:
General
Stevenson & Cote, Crv// Procedure Guide
Watson, Bogart et al., Civil Litigation, cases & materials
Sopinka, The Trial of an Action
Williston & Rolls, The Conduct ofan Action
Williston & Rolls, The Law ofCivil Procedure
Specialized Topics
Choate, On Discovery, T*ed
Manes, OrganizedAdvocacy
White, TheArt ofDiscovery
CarsweU's Practice Cases
Precedents
Bullen & Leake & Jacob's Precedents & Pleadings
LESA Alberta Court Forms
145
VofC- Law 681.12 Civil Procedure
Course Outline and Reading List
Fall 2009
Professor Chris Levy and Sabri M. Shawa
Litigation and the Courts
1-
(a) Litigation in the Dispute Resolution Continuum
'
' feXC 2A3^.I^..^^ ***»*• ^wbook Co.
(b)
Civil vCommon Law Systems
3
' 2*!^^
C°- *"** 2004 PP 60 -
(c) Anatomy ofan Alberta Queen's Bench Lawsuit
2-
'8
Rules ofCourt
(a)
What are the Rules and their Objectives
•
Stevenson W and Cote J Alh
2'
n
Edmonton 2006introduction andpp" -%J^4£?"* }U"1^
• Rules 1-4.
•
3-
359
Proposed Rules 3.1, 1.6 - 1.9.
• ProvincialComAct(AB) s. 8(see Chapter4)
^
Practice and Professional Obligations
'%
(a)
^
Practicing Law and Right ofAudience
• legal ProfessionsAct (AB)s. 106
• Rules 5.2 -5.4.
•
2S
Proposed Rules 2.22,2.23
38
{00064223 v3}
*indicates the rule only, without the associated annotation
146
-2-
W Duty to Court and Other Counsel
• 7S°^^ber,C^o/^WCo^
W ^'K^nersandRetainerAgreements
*
• Law Society ofAlberta £W-)W andFees
' ^w Society ofAlberta Codeof^^ ~~^
*
• Legal Aid Financial Eligibility Guidelines
•
Rules 613, 614* 615* m<* *,^~
76
•»•.«••«•:S:S,;SXS;2£riSr---
• Proposed Rules 10.1,10.2, 10.4- 10.19,2.27
' '
• u"***i°rMi*n.rm.a**„7.,.n
77
Summary
4-
_
*"' August 20°8> Executive
Jurisdiction
86
• ^r^^^^--.r-^T^sck^"^^'"^ ,05
• RvGunn[2003]AJ1No467nrt
u* ,1 note and paras. 17 - 29
j /u jno 467 QB, head
U5
• Judicature Act (AB)ss. 1-26
H?
• Aww/vAWY/(I919)48DLRI3...jr
163
• Provincial CourtAct (AB)s. 9.6
• P^^ Court CivilDivision,egula^
• ^deralCourtsAct (Canada) ss. 17-26....
^
I95
^
.229
(00064223 v3J
*indicates the rule only, without the associated annotation
147
3
^"^Ll^"**"* «•""* [2008] OJ No. 5291, paras. 3 - 8,
• Canada (Attorney General) , Teletone /„, t2009] S.C.C.A. No. 77
255
• Ai««iftw^«/(AB)fc 27 (see above)
163
• OrdonEstate vGrail[,998]3SCR437,paras. 41 -eZIIZ
•
5-
Stevenson W and Cote I ah, - ^
Edmonton 2006 p3
.....„_
^
Procedur* Handbook Juriliber
Limitations, Laches and Notice Periods
359
' Alb-^Ref0m,„stitute^^^
2
• Bowes vEdmonton [2007]J AJNo
ARCA paras 113-178
,,.
™ 1500
iouuabCA,
385
,„,
• limitations Act (AB)
• Sawchukv Bourne [2005] AJ Ho. 1558ABCA
• Castillo vCa,,//,0 [2004] AJ No. 802 ABCA
."
^
• Insurance Act (AB) s. 590
444
• Municipal GovernmentAct (AB)s. 531....
^
• Defamation Act (AB) s. 13
45'
• Workers•CompensationA* (AB) s. 21
^
• Lawrence vtorf^ r,982] AJ Nq 33 AfiQB
451
Drafting Pleadings -Generally
453
• CoteJ<SomeNotesonPleadings(.974) 12A.ta LR53IZZZI
^
6.
'
R"fes5.,2, ,04, ,05*, ,06*, ,„, „3> „5, „„. g?
.473
Proposed Rules 12.6 - 12.8, 12.13 -12.16.
{00064223 v3}
*indicates the rule only, without the associated annotation
148
7-
Pleadings -Specific and Common
.492
(a) StatementofClaim, Originating Noticeand Petition
• Ru,es«->.237,6*,4,0*,120*,88*,89*,7*,8*,606*.
• Pr°P°sed *"** 3.2 -3.6, 3.8,3.25, 12.17.
W StatementofDefence, CounterClaim and Demand ofNotice
•
Rules 109* 119* 191* i->c* 1^,-.
]46, • .121 ,125*, 126*, 93, 94*, 95*, 96*, 97*. 98*, 90*, 9, *,
• Proposed rules 12.12,330 -3.35,3.56 -3.60.
(c)
Third Party Notice and Notice to Co-Defendant
' Ru-es 66, 67*. 69*. 70*. 7,(1), 7,(2), 7.(3), 7,(4), 75* and 77.
• Proposed Rules 3.43 -3.47, 3.49 -3.55.
• ContributoryNegligence Act (AB)
•
(d)
..493
Tort-Feasors Act (AB)
.495
Particulars
(e)
•
Rules 117*,118.
•
Proposed Rule 3.61
Joinder ofIssue and Close ofPleadings
• Rules 99*. 100*, 101*, 102*, 103*.
•
(0
8.
Proposed Rule 3.67.
Fiat
•
Rule 393.
•
Proposed Rule 12.39.
Service
Rules 11, 13 -22, 23*, 24 -28,406*, 84*, 85*, 86*, 71(2.,)*.
•
Proposed Rules 3.9, 326 - 3 ?Q 11 i
11.30, 3.9.
.497
i, <r ,,
3'29' ,U " n-6> ".10-11.21, 11.26, 11.28-
{00064223 v3}
*indicates the ru,e only, without the associated annotation
149
-5-
• Business Corporations Act (AB) s. 256
9.
Default
• Rules 142*, ,43*, ,44*, 147*, ,48*. ,49*, ,50*, ,52*, ,58*.
•
10.
498
499
Proposed Rules 3.36 - 3.40.
Amendments
n,
•
Rules 110, 130* ,31* no m* ,^.*
•
Proposed Rules 3.62 - 3.66.
14I*
500
' I31 >'32, 133*, 134*, 135*, 136*, 137*, 138*, ,39*,
• LimitationsAct (AB) s. 6(see Chapter 5).
3g5
11. Joinder ofActions and Parties
•
501
„ .
Lahoon vFranks [1 967] SCR 455.
515
• Rules 32,36, 37, 38*, 39,46, 47*, 229*.
•
Proposed Rules 3.69 - 3.76.
12. Pa^U„derDisabi,ity,S„rviva,ofActi„„sa„dFata,Accide„tS
ffl,
• Survival ofActionsAct (AB)
522
• FatalAccidents Act (AB)
D . en
•
525
Rules 58 - 62, 64*.
• Proposed Rules 2.11, 2.13 -2.17, 2.20.
• Rule
M^C50*.^ocfyvie, GeneralHospital [2003] AJ^o. 546 ABQB
•
• Administration ofEstates Act (AB) s. 31
• StoutEstate vGolinomkiEstate [2002] AJ No. 247 ABQB
529
534
• Parties Under Disability Chart
578
{00064223 v3}
*indicates the rule only, without the associated annotation
150
-6-
13.
Proceedings Against the Crown
579
_
'p
580
• °^^/%«/7yoee«ftwr^{Caiiadll)Bi3
_
14.
607
• f-W CourtsAct (Canada) s. 48 and Schedule (see Chapter4)
229
• ProceedingsAgainstthe CrownAct (AB)ss. 5, lOand 12
6J6
• Lee vJ^ <£ ^wwy [2000] 248 AR 225
• DecockvAlberta [2000] AJ No 419
622
Class Actions
„
660
• ClassProceedingsAct (AB)ss. 2, 3, 5, S, 17, 18(1), 18(2)
66]
• Rule 41.1*, 41.2*, 41.3*, 41.4*, 41.5*, 41.6*, 42*.
•
Proposed Rules 12.11,2.6 - 2.9.
• Gillespie vGessertetal unreported ABQB 24 March 2006
15.
m
Discovery
697
(a)
Documents
* ™.i&!!%:}Z\ifa''m*',88-'*'i89*- '»•-. <9o*, .90,*,
•
Proposed Rules 5.1 - 5.3, 5.5 - 5.,6.
• Dorchak vKrupka [1 997] AJ No. 308 ABQB
V
• Sherren vBoudreau [1973] 42 DLR 627 NBCA
698
711
•
(b)
Bennett Dand Cascadden WProcedural <&**.„• r r- •
C»W™rf^Bu«er^
Examinations for Discovery '
' 2Rot*:220^2n.'rn0tati0n 1/,"^-^^).200..*,203*,204*,205*,
• ProP^Ru.es5.4,5..7-5.29,5.3.,5.32,6.,7-6.20,6.24,6.40,8.,4.
•
Conduct Money Chart
724
{00064223 v3}
*indicates the rule only, without the associated annotation
151
-7-
• Rose&LaflammeLtd vCampbell, Willsetal, [1923] 4DLR 92 SCA
•
725
Leeds vAlberta [1989] AJ No 755
729
• Re San Francisco Gifts Ltd. [2004] AJ No 340
(c)
742
Undertakings
(d)
•
Rule 208*
•
Proposed Rule 5.30.
Implied Condition ofConfidentiality
•
Rule 188 annotation I
•
Proposed Rule 5.33.
• LSILogic Corp. ofCanada vLogani [2001] AJ No 1083, paras. 93 -113
745
• WirthLtd vAcadiaPipe &Supply Corp. [1991] AJNo 342
m
' ^^^T^0fPr0feSSi°»°l<**« Chapter 7, RuJ1-9
• Juman vDoucette [2008] 1SCR 157
(e)
16.
784
792
Privilege
Motions
01 o
• Rules 384,386*, 387,261*, 261.1*, 266.
•
•
(a)
Rules 267*, 298* ?QQ* ™* im* ™-,*
313*,314*,3141*.
'
' 3°6 *307 ' 308*' 309*' 310*, 311*, 312*,
Proposed Rules 6.3, 6.4, 67-6 in Ai-> /=->-, «,, ~
3-11,3.13, 12.14, 12.19-1222^^
9J6' 8J?' 8J8' 3'8'
Jurisdiction ofMasters and Justices
{00064223 v3}
•indicates the rule only, without the associated annotation
152
8-
' 2S^£?K?£71™Thomson
1490 -1492.
t0 thC Profess,°n, Civil, MastersCarswe"T—
Jurisdiction pp
• Rules 148 annotation 7, 152 annotation 2, 158 annotation 3
(b)
Ex Parte Applications
•
(c)
Rules 394, 395.
Summary Disposition
(0
Striking Out Pleadings
•
Rule 129*.
00
Summary Judgment
•
Rule 159*.
•
Proposed Rules 7.2 - 7.4.
(»9
Summary Trial
• Rules 158.1, 158.2*, 158.5, 158.6, 158.7*.
•
ProposedRules7.5-7.1,.
(iv)
(d)
Trial ofan Issue
•
Rules 220*, 221.
•
Proposed Rule 7.1.
Other Common Motions
(i)
Service Ex-Juris.
•
Rules 30*, 31*, 27*.
•
Proposed Rules 11.26, 11.27.
(»)
Substitutional Service
•
Rule 23*.
•
Proposed Rules 11.6, 11.26, 11.27.
O'ii)
Anton Pillar Orders
{00064223 v3}
*indicates the rule only, without the associated annotation
153
-9-
•
Rule 468*.
•
Proposed Rules 6.27, 6.28.
(iv)
Security for Costs
• Rules 593*, 594*, 595*, 596*, 597*, 598*, 599.
•
Proposed Rules 4.22,4.23.
(v)
Interim Injunctive Relief
• Judicature Act (AB) s. 13(2) (see Chapter 4)
163
• Knight vStrathmore brief 18 May 1999
f,
(e)
819
Orders and Consent Orders
• Ru.es 317*, 3.8*, 3,9*. 320*, 32.*, 322*, 323..*, 326*. 327*, 329,330*.
• Proposed Rules 9.1 -9.8, 9.13 -9., 6, 3.35.
17.
Costs
037
• Rules 601 *, 602*, 605*, Schedule C*, 607*.
• Proposed Rules 10.27 - 10.41, ,0.48.
18.
Appeals
,,
(a)
(b)
19.
„
837
From a Master
•
Rule 500.
•
Proposed Rules 6.15 - 6.18.
From a Justice
• Rule 505*, 506*, 507*, 508*, 510*.
Streamline Procedure
i?
037
• Rules 659*, 660*, 661 *, 662*, 663*, 664*, 665*, 666*.
20.
Judicial Review
037
• Rules 753.01*, 753.02*, 753.03*, 753.04*, 753.1 ,*, 753.12*, 753.13*.
• Proposed Rules 3.15, 3.18, 3.19, 3.21 -3.24.
{00064223 v3}
*indicates the rule only, without the associated annotation
154
-10-
21.
Medical Examinations
22.
23.
24.
•
Rule 217*.
•
Proposed rules 5.41 - 5.44.
/
Experts
g3?
•
Rule 218, 218.1*, 218.11*, 218.12*, 218.13*, 218.14*.
•
Proposed Rules 6.42 - 6.45, 5.34 - 5.40, 8.16.
Discontinuance
•
Rules 225*, 226*, 227*.
•
Proposed Rules 4.36,4.37.
Ceasing to Act and Change of Solicitors
•
Rules 554*, 555.
•
Proposed Rules 2.28 - 2.32.
• Law Society of Alberta Code ofProfessional Conduct Chapter 14 (see
Chapter 3)
25.
Settlement, Mini-Trials and Judicial Dispute Resolution
•
Fradsham AAlberta Rules ofCourt Annotated Thomson CarsweJl Toronto
2008 Compromise Using Court Process pp 310 - 312.
•
Rules 166*, 167*, 168*, 169*, 170*, 171*, 172*, 173*, 174*.
•
Proposed rules 4.24 - 4.30.
• Moore WMini-Trials in Alberta Alberta Law Review (1995) 3Alta LR 94
26.
Vexatious Proceedings
27.
• Judicature Act (AB) Part 2.1 (see Chapter 4)
Moving an Action Forward
(a)
«--
837
g38
g39
.844
845
163
g60
Delay and Proposal for Timing
•
Rules 244*, 244.1*, 243.2.
•
Proposed Rules 4.1 - 4.21, 4.31 - 4.33.
{00064223 v3 J
* indicates therule only,without theassociated annotation
155
11-
(b)
Case Management.
•
Fradsham A Alberta Rules of Court Annotated Thomson Carswell Toronto
2008 Civil Practice Notes, Guidelines for Case Management and QB Civil
Practice Note 1,Case Management Practice Note pp 1514 - 1525.
28.
Mode of Trial
•
29.
Fradsham A Alberta Rules of Court Annotated Thomson Carswell Toronto
2008 Commentary, Mode of trial vs. Type of Trial pp 635 - 639.
•
Rules 234*, 235*.
•
Proposed Rules 8.1-8.3.
•
Fradsham A Alberta Rules of Court Annotated Thomson Carswell Toronto
2008 Civil PracticeNote 2, Civil Jury pp 1525 - 1528.
•
JuryAct (AB) ss. 1 - 13
,
862
Pre-Trial Evidentiary Notices
(a)
(b)
(c)
30.
g61
872
Notices to Admit Facts and Opinions
•
Rules 230*, 230.1*.
•
Proposed Rules 6.39, 6.40.
Notice of Witnesses not to be Called
•
Rule 296.1.
•
Proposed Rule 8.15.
Attendance of Witnesses
•
Rules 292*, 293*, 294*.
•
Proposed Rules 8.8, 8.9.
Time Calculations
•
Rule 544*, 545, 546*, 547*, 548, 549*, 550*, 552*, 553*.
•
Proposed Rules 12.3 -12.5.
•
Interpretation Act (AB) ss. 22 - 23
373
874
{00064223 v3}
* indicates the ruleonly, without the associated annotation
156
-12-
General Slip Rules
31.
32.
•
Rules 558, 559, 560*, 561*, 561.01*.
•
Proposed Rules 1.5, 3.68, 12.16.
g90
Final Pre-Trial Steps
(a)
(b)
gqj
Pre-trial Conference
•
Rule 219*, 219.1*.
•
Proposed Rules 4.10.
•
Fradsham A Alberta Rules of Court Annotated Thomson Carswell Toronto
2008 Civil Practice Note 3, Pre-Trial Conferences pp 1528 - 1531.
•
Sulhany R Preparation and Presentation of a Civil Action Butterworths
Toronto pp 59- 66
g92
Certificate of Readiness, Record and Entry for Trial
•
Rules 236, 239*, 240*, 672.
•
Proposed Rules 8.4 - 8.7.
•
Fradsham A Alberta Rules of Court Annotated Thomson Carswell Toronto
2008 Consolidated Notices to the Profession, Civil, Conditional Certificate of
Readiness (Calgary) pp 1492.
•
Fradsham A Alberta Rules of Court Annotated Thomson Carswell Toronto
2008 QB Civil Practice Note 4, Setting Down for Trial and Schedule A Certificate of Readiness pp 1531 - 1535.
{00064223 v3}
* indicatesthe rule only, without the associatedannotation
157
Law !
EVIDENCE
(Law 681.13 - Section 01)
Winter Session - 2010
Instructor:
Office Hours:
Chris Levy.
MFH 4380.
(403) 210-9725 (off),
clevy@ucalgarv.ca
By appointment. Please e-mail me with any questions you have.
I will
reply by e-mail unless you ask for a meeting, in which case we will set one up
as quickly as possible.
Class Location:
MFH 3360
Class Times:
Tuesday and Thursday, 10:30 a.m. - 11:50 a.m.
Final Examination:
Tuesday, April 13, 2010- 9 a.m. - three hours
Evidence is an important course. Often it involves ideas that are difficult to grasp, at least initially. It
can also be great fun intellectually. At its simplest, evidence is about proof. In studying it, we examine
what lawyers and their clients can and cannot use in a trial to persuade a trier of fact, whether judge or
jury, to do the right thing. In the context of the law of evidence the "right thing" is a mixture of what is
true, what might be true, what appears to be true, what is found to be true, what is fair (both to the parties
and societally) and what is just.
Truth, fairness, and justice are not synonyms. You will find, perhaps surprisingly, that justice or fairness
often require that what is apparently "the truth" be excluded from the court record and not form part of
the judgment rendered in aparticular case. Truth-seeking is acentral judicial function, but alegally just
result does not purport to be the truth. It is worth remembering that the oath taken by members of ajury
is that they will return a true verdict according to the evidence (my emphasis).
The law of evidence is an intellectual discipline, difficult both practically and theoretically, that organizes
modes of inference and judgment, establishes principles, rules, and guidelines, employs judicial
discretion, rel.es upon morals, values, and truths, and tries to eliminate prejudices, all in order to permit a
judge and jury to decide acase in amanner that is just and that maintains and promotes both the integrity
of our legal system and its legitimacy in our community. The same rules apply whether trial is by iurv
or by judge alone. Most trials are by judge alone, but many principles or rules of evidence are based on
concern about how ajury may utilize certain evidence. We may ask ourselves on occasion whether this
makes any sense.
In this course, students will be introduced to the basic principles of the law of evidence and will establish
the ability to think through problems of proof, how to resolve them, and how to construct evidentiary
arguments, for and against. The ability to use evidence law to argue for or against admissibility is the
prime aim ofthe course. The law is ever-changing, and knowing certain cases now will be ofno value in
some contexts, even 6 months from now. The ability to create and deliver a persuasive argument will
always be of service to you.
An important difficulty in evidence is that so many of the leading cases involve violent crimes The
facts are at best unattractive. However, we have to deal with them in order to come to grips with basic
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158
concepts and principles. Once you are called to the bar, you will have a choice whether to continue to
read and think about such matters, prosecutethem, defend them, or ignore them. In this class, we have no
choice. Since we must read about things we might rather not, it is essential that we attempt simply to be
clinical about Evidence Law's sources, and to discuss the facts as do the judges writing them - without
fear, censure, or embarrassment.
Evidence law is important in Civil as well as Criminal litigation. There is a school of thought that while
the principles themselves may be the same in both types of lawsuit, they are used and applied in practice
in rather different ways depending on the nature of the case. At times, this might well lead one to think
that the law of evidence itself is actually different in Civil matters than it is in Criminal matters. It is
also the case that the Charter of Rights plays a significant role in criminal evidence, but only a very
minimal role in civil evidence. Most of this course will involve Criminal cases.
If you feel that civil
evidence is getting rather short shrift, you are not without some justification in that feeling.
Required Course Materials:
1.
Stewart, Hamish et al, ed., Evidence, A Canadian Casebook, 2nd [Toronto: Emond Montgomery,
2006] (referred to as "Stewart")
2.
Brett Code's collection of Supplementary Course Materials (2010) [referred to as "Code
Materials"]
3.
The Canada Evidence Act and Alberta Evidence Act.
[These Acts will not be much referred to,
but you need to be aware of their existence and at least occasionally of what they actually
contain].
Stewart is available for purchase at the University Book Store.
The "Code Materials" will be posted on Blackboard and will be available from the Copy Centre in a
single volume.
If you still have a Pocket Criminal Code no older than the 2009 edition, you may use the version of the
Canada Evidence Act it contains, otherwise access it electronically.
The Alberta Evidence Act should
be accessed electronically.
Other material may be assigned along the way, and the readings described below may be altered.
Evaluation (100%)
*1. Examination (75%):
There will be no mid-term examination. The final examination, written over three hours, is worth
75% of the final grade. The final will be open book; students are welcome to bring in whatever
written or printed or copied materials they feel may assist them in writing it. However, no
material in a format directly borrowed from the Library may be brought in. Laptops and other
electronic information carriers will not be permitted in the examination room (other than by
permission of the Disability Centre).
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159
2. Case Comment (25%):
This will be handed out in class on March 16 and will be due no later than 12:00 Noon on March
26.
It will be done in groups of 3.
The groups will be determined no later than the start of
class on March 09. You may select your own groups provided that you notify Chris Levy by email no later than 2:00pm on Thursday March 04 of the three names in the group together with
their e-mail addresses. Confirmation that the group is accepted will be by e-mail to all its
members from Chris Levy.
Only those students not already in groups will be assigned to
groups by Chris Levy. All students in a group will receive the same grade, and will have joint
and several responsibility for the entire content ofthe Case Comment. Please ensure that you
are familiar with the University rules relating to plagiarism, particularly as they concern
acknowledging sources and quotations. Poor syntax and grammar will be penalized.
Each group will be assigned a case, and the issue or issues in the case that must be commented on,
by Chris Levy in class on March 16. Most ofthe cases will be leading cases in a particular area
ofEvidence law and will therefore be key to understanding the subject matter ofthis course.
All the Case Comments will be posted on Blackboard, hopefully by March 29.
All students are
encouraged to read them all as part of their preparation for the Examination. One, perhaps two,
class sessions will be devoted to discussion of and comment on the Case Comments.
This will
form part of the review process for the Examination.
The Case Comment shall not exceed 10 single spaced letter size pages, using a 12 point font and
with margins of a size appropriate for formal legal documents.
3. Method of Arriving at Final Course Grade:
The Case Comment and the Final Examination will each be graded using one of the following
grades:
A+
A
A-
(4.0)
(4.0)
(3.7)
B+
B
B-
(3.3)
(3.0)
(2.7)
C+
C
c-
(2.3)
(2.0)
(1.7)
D+
D
F
(1.3)
(1.0)
(0.0)
The two grades will than be combined proportionately using the numerical values in the table
above. A Final Course Letter Grade will then be assigned on the basis ofthe above numerical
values, with acombined numerical value at or above the half way point between two letter grades
resulting in the higher letter grade. These Final Course Grades are then subject to review and
adjustment, upwards ordownwards, to ensure compliance with the "B median" rule for Final
Course Grades that has been imposed, and is enforced, by the Faculty ofLaw. This "B median"
rule does not apply to either the Case Comment Assignment or to the Final Examination standing
alone. It only applies to the Final Course Grade. As aprofessor, Iusually try to comply with
this rule and to make any necessary adjustments myself. IfIdo not do so, the Faculty will do it
for me.
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160
4. Class Preparation and Participation:
Preparation for class is crucial. This class is intended to analyze and critique cases, not review
them. Not all assigned cases will be discussed in class, and some will be discussed in more detail
than others. All assigned cases and all assigned readings form the subject matter of the
examination. If a particular case is not discussed in class, and if you have questions about it or
wish to discuss it, pleaseemail me, and I will set up a time with you to do so.
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161
January 12
Guest Lecture: The Honourable Madam Justice Sheilah S. Martin
January 14
Introduction and discussion of course outline and syllabus, expectations, case comment
assignment, and the final examination.
Basic Concepts
•
Stewart, Chapter 1, "Sources and Goals ofthe Law ofEvidence", pp. 3-17
•
Harold Pinter, "Art, Truth, and Politics", the Nobel Lecture, December 7, 2005, Swedish
Academy, Stockholm, Sweden, in Harold Pinter, The Essential Pinter (New York, Grove
Press, 2006) pages 1-13,404 - Code Materials at 1
•
Canadian Judicial Council, Model Jury Instructions
o
Preliminary Instructions
•
Chapter 1, Instructions to the Jury Panel - Code Materials at 17-19
•
Chapter 3, Opening Instructions to theTrial Jury - Code Materials at 20-22
•
Chapter 4, Instructions on Trial Procedure - Code Materials at 23-26
o Final Instructions, Chapter 8: Duties of Jurors and Sections 10.1 and 10.2 Code Materials at 48
January 19
Assessing Evidence
•
R. v. Pelletier, [1995] A.J. No. 256 (C.A.) - Code Materials at 76-79
• Canadian Judicial Council, Model Jury Instructions - Instructions on Trial Procedure,
Section 4.11 and General Principles, Sections 9.4, 9.5, 9.6 - Code Materials at 25-2645-46
Burden and Standard of Proof
•
Stewart, 975-977; 987-1001: Lifchus; Morin
• Canadian Judicial Council, Model Jury Instructions - Fundamental Principles, Sections
5.1 and 5.2 and General Principles, Sections 9.1, 9.2, 9.3 - Code Materials at 27; 44
•
January 21
F.H. v. McDougall, 2008 S.C.C. 53 (October 2, 2008) - Code Materials at 80-107
Wrongful Conviction
Guest Lecture: Mr. Hersh Wolch, Q.C.
•
Blurb, Hersh Wolch, Q.C- Code Materials at 108
'
•
Canada's Wrongful Convictions - CBC.ca - Code Materials at 116-120
•
Gavin Carscallan, "Wrongful Convictions" - CodeMaterials at 109-115
• "$1.1 MAward for False Conviction", Ottawa Citizen - Code Materials at 121-123
• Excerpts, Royal Commission on the Donald Marshall Jr., Prosecution, N.S.S C - Code
Materials at 124-128
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162
January 26
Judicial Notice
•
BinnieJ., "Judicial Notice: HowMuch Is Too Much?", L.S. U. C. Special Lectures 2003:
The LawofEvidence (Toronto: Irwin Law, 2004) at 543 - Code Materials at 129-154
•
Canadian Judicial Council, Model Jury Instructions-Final Instructions, Section 11.29 —
Code Materials at 69
•
Stewart, 931 to 933
Suggested reading (not required): Stewart 933-973: Potts; Zundel (1987);
Zundel (1990); Krymowski; Find; St. Lawrence Cement Inc.
Relevance
•
January 28
Stewart, 3-4; 85-93: Watson.
Also consider Morris and Terry.
Probative Value v. Prejudicial Effect
•
February 2
Stewart, 93-128: Seaboyer
Opinion Evidence: Lay and Expert
•
Stewart, 271-276: Graat
•
Stewart, 277-298; 311-322: Mohan; Lavallee
•
Canadian Judicial Council, Model Jury Instructions -Mid-Trial Instructions, Section 7.18
and Final Instructions, Sections 10.3 and 10.4 - Code Materials at 34-35; 48-49
February 4
February 9
Hearsay
•
The Examination of Witnesses, Stewart, 81 -83
•
Hearsay or Not? Stewart, 131-154: Teper; Williams; Subramaniam; Wildman; Wright
v. Tatham; Wysochan; (not McKinnon); Blastland
o
R v. Evans (1993), 85 C.C.C. (3d) 97 (S.C.C.)
Not Relevant; Not Hearsay; Not Meaningful; Not Admissible:
•
Fejsruary 11
R. v. Ferris, [1994] A.J. No 19 and [1994] S.C.J. No. 97 - Code Materials at 156-181
Some Exceptions to the Rule Against Hearsay
•
Stewart, 154, 157-173, 198-199: (not Bedingfield); Ratten; Clark; O.Brien; Pelletier;
Lucier; R. v. Clark, [1983] ).J. No. 3125 (C.A.)
February 16
READING WEEK - NO CLASSES
and 18
February 23
Hearsay: The "Principled" Approach
•
Stewart, 54-59 and 208-218: Khan, Smith
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163
Stewart, 267, note 7 - Mapara
Khelawon and Griffin - Code Materials at 182-204 and 205-222 (both taken from Prof.
Hamish Stewart's "EvidenceCasebook Supplement 2010")
Canadian Judicial Council, ModelJuryInstructions -Mid-Trial Instructions, Sections
7.2, 7.3, and 7.13 and Final Instructions, Sections 11.7 and 11.28- Code Materials at 29;
32; 54-55; 69
February 25
Thinking About Truth, Fairness, Justice
•
Patrick Healy, "Admissibility, Discretion and the Truth of the Matter: Developments in
the Law of Evidence: The 1993-94 term", 6 Supreme Court Law Rev. (2nd) 379- 387 Code Materials at 234-246
Credibility
•
Stewart, 327-331.
•
Stewart 332-352 may be skimmed
•
Stewart 352-357; Toohey
•
Stewart, 357-362 may be skimmed
•
Stewart 362-368
•
Stewart 369-386; Corbett.
•
Stewart 386-390; Browne v. Dunn; Lyttle
•
Collateral facts: Stewart, 390-397
March 2 and
Character
March 4
•
Putting Character in Issue- Stewart,411-412
• D.M. Paciocco and L. Stuesser, The Law ofEvidence, 5th. Ed., Irwin Law, Toronto
2008, pp.48 -53 : Code Materials 247-252
Similar Fact Evidence
o Stewart, 465 - 522 :Makin, Smith, Strqffen, Boardman, Sweitzer, C.R.B., Handy
March 9 and
March 11
March 16
Statements by Accused Persons: Common Law
• Statements to Persons in Authority - Stewart, 548-568: Rothman; Hodgson
•
Grandinetti, Code Materials 253-263 m
•
Unger, Code materials 264 - 296
Voluntariness: Fear ofprejudice orhope ofadvantage, Stewart, 570 - 572: Ibrahim
Voluntariness: Oppression, Stewart, 577 to 595: Serack; Oickle
Spencer-Code Materials 297-312 (taken from Prof. Hamish Stewart's "Evidence
Casebook Supplement2009)
Confirmation by Subsequent Facts, Stewart 595-599, St. Lawrence
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164
-8
•
Wray - Code Materials at 313-328
Privilege/Principle Against Self-incrimination
March 18
•
Henry - Code Materials 329-344
o
•
Optional reading: Stewart,881-909: Dubois, Kuldip, Noel
Stevens, L.K., "The Privilege Against Self-incrimination in Non-Testimonial Contexts",
National Criminal Law Program, May 11, 2009 - Code Materials at 345-359
Improperly obtained evidence
March 23
•
Patrick Healy, "Lamer, the Exclusion of Evidence and the Scent of Truth: 1975 - 2000"
- Code Materials 360-387
March 25
March 30
April 1
April 6
•
Right to Silence under Section 7, Stewart 606-619 - Hebert
•
Singh, Code Materials 388-412 (taken from Prof. Hamish Stewart's "Evidence Casebook
Supplement 2009)
•
Bringing the Administration of Justice Into Disrepute, Stewart, 637-642; 700-706 Collins
•
Stewart, 711 -734 - Stillman
•
Grant, Code Materials -413-441
Privilege
•
Solicitor-Client Privilege: Stewart, 751 -786: Pritchard; Smith v. Jones; Brown
•
Litigation Privilege: Stewart 786 - 807: General Accident v. Chrusz
•
Public Interest Immunity: skim Stewart 817 - 832
•
Matrimonial Communications: Stewart 832 - 834
•
Other Relationships: Stewart, 835 - 838: Slavutych v. Bakerand Stewart, 843 - 853:
Gruenke.
April 8
•
Questions and Answers in anticipation of the final examination
April 13
•
Final Examination - 9 a.m. - 3 hours
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tbwtt
EVIDENCE
(Law 681.13 - Section 02)
Winter Session - 2010
Brett Code, Adjunct Professor of Law; University of Calgary, Faculty of Law
Partner, Bennett Jones LLP
403-298-3163 codeb@bennettjones.com
Class Location:
MFH 3370
Class Times:
Tuesday and Thursday, 10:30 a.m. - 12 noon
Final Examination:
Tuesday, April 13, 2010-9 a.m. - three hours
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166
Required Course Materials:
1.
Stewart, Hamish et al, ed., Evidence, ACanadian Casebook, 2nd [Toronto: Emond Montgomery
2006] (referred to as "Stewart")
2.
Brett Code's collection of Supplementary Course Materials (2010) [referred to as "Code
Materials"]
Stewart is available for purchase at the University book store.
The Code Materials are posted on the Blackboard and have been printed by the Copy Centre in a single
volume with a red cover.
Other material may be assigned along the way, and the readings described below may be altered.
Evaluation (100%)
1. Examination (80%):
There will be no mid-term examination. The final examination, written over three hours, is worth
80% of the final grade. The final will be open book; students are welcome to bring whatever
written materials theyfeel will assist them in writing it. Laptops and otherelectronic information
carriers will not be permitted in the examination room (other than by permission of the Disability
Centre).
2. Moot Voir Dire (20%):
A voir dire is a hearing, held duringa trial in the absence of the jury, upon some issue of fact or
law that requires an initial determination by the court or upon which the court must rule as a
matter of law alone. For example, if the prosecution seeks to admit a pre-trial confession of the
accused, the court must conduct a voir dire to determine if the statements were obtained
voluntarily. A ruling on the confession's admissibility must be made by the trier of law before the
trier of fact is permitted to hear the confession.
For this moot, all students will join into groups of three students each. The names of the
members of each group will be given to Brett Code during the January 14 class. Each group will
moot a voir dire on a question of admissibility. Each group's question will be assigned by Brett
Code. Most of the mooted cases will be the leadingcases in a particular area of Evidence law and
will therefore be key to understanding the subject matter of this course.
Each group will have 20 minutes to present the problem and to conduct the class discussion
engendered by the moot. A typical presentation will be as follows:
1.
Distribution to the class (48 copies) of a 2-page summary of the facts, prime evidence
issue, arguments, and result of the mooted case. No summary shall exceed 2 pages, single spaced
with 12 point font, and normal margins (creative formatting is not a substitute for effective
writing and editing, and it will be penalized.) One page of choice quotations may be appended to
the summary, in addition to the 2-page limit. The summaries will be distributed at the beginning
of the class prior to the class during which the group is scheduled to moot.
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167
3-
2.
Two members of the group will be lawyers, essentially arguing for and against
admissibility. Even though most of the cases employed in this assignment are the decisions of
appellate courts or of the Supreme Court of Canada, the moot voir dire is not an appeal. The
admissibility arguments are made as if for the first time, as if attempting to persuade the trial
judge at the initial trial to admit or exclude the proposed evidence..
3.
The third member will be the judge, who may interrupt, ask questions or feed arguments,
as scripted by the group. At the conclusion of the arguments, the judge will poll the class, asking
whether the evidence should be admitted or excluded. The judge will then, depending upon the
case and upon the approach chosen and developed by the group, explain to the class which
argument won in the real case, the basis of that result as explained by the real judge, and whether
the group agrees or disagrees with the decision of that judge, with the majority or with the
dissent, as the case may be and as appropriate. The judge does not read a judgment but rather,
along with the group members, introduces and leads a class discussion. The purpose is a didactic
one, to teach the legal issues and to demonstrate the persuasive points on either side of the
arguments made.
4.
Sometimes, admitted evidence requires a caution from the trial judge who instructs the
jury on the permitted uses to which that evidence can be putand who warns the jurors against, for
example, the kinds of reasoning that are forbidden to them in considering certain admitted
evidence. If your group's moot requires a jury instruction or warning from the trial judge, the
judge will give that warningand explain its purpose and intended effect.
Each member of the group will receive the same grade, a group grade worth 20% of the overall
course grade.
3. Method of Arriving at Final Course Grade:
The moot voir dire and the final examination will each be graded using one of the following
designations:
A+
A
A-
(4.0)
(4.0)
(3.7)
B+
B
B-
(3.3)
(3.0)
(2.7)
C+
C
C-
(2.3)
(2.0)
(1.7)
D+
D
F
(1.3)
(1.0)
(0.0)
The Faculty of Law has imposed a "B" median rule for final grades. The "B" median rule does
notapply to the moot voir dire assignment. This, along with the rule itself, may have an impact
on the final grades recorded for the course. Under the "B" median rule, the instructor has no
control over imposed grade changes. Where appropriate, the student should address his or her
concerns through the Dean's officeor by petition to the Academic Status Committee.
Class Preparation and Participation:
Preparation for class is crucial. This class is intended to analyze and critique cases, not review
them. Not all assigned cases will be discussed in class, and some will be discussed in more detail
than others. All assigned cases and all assigned readings form the subject matter of the
examination. If a particular case is not discussed in class, and if you have questions about it or
wish to discuss it, please email me, and I will set up a time with you to do so.
Effective class participation is encouraged and rewarded. Before I report the final marks, I may
exercise my discretion toround up any grade based on exceptional class participation.
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168
January 12
GuestLecture: The Honourable Madam Justice Sheilah S. Martin
January 14
Introduction and discussion of course outline and syllabus, expectations, advocacy
assignment (the moot voirdire), and the examination.
Basic Concepts
• Stewart, Chapter 1, "Sources and Goals of the Law ofEvidence", pp. 3-17
• Harold Pinter, "Art, Truth, and Politics", the Nobel Lecture, December 7, 2005, Swedish
Academy, Stockholm, Sweden, in Harold Pinter, The Essential Pinter (New York, Grove
Press, 2006) pages 1-13,404 - Code Materials at 1
•
Canadian Judicial Council, Model Jury Instructions
o
o
Preliminary Instructions
•
Chapter 1, Instructions to theJury Panel - CodeMaterials at 17-19
•
Chapter 3, Opening Instructions to theTrial Jury- CodeMaterials at 20-22
•
Chapter 4, Instructions on Trial Procedure - Code Materials at 23-26
Final Instructions, Chapter 8: Duties of Jurors and Sections 10.1 and 10.2Code Materials at 48
January 19
Assessing Evidence
•
R. v. Pelletier, [1995] A.J. No. 256 (C.A.) - Code Materials at 76-79
•
Canadian Judicial Council, Model Jury Instructions - Instructions on Trial Procedure,
Section 4.11 and General Principles, Sections 9.4,9.5,9.6- CodeMaterials at 25-26;
45-46
Burden and Standard of Proof
•
•
Stewart, 975-977; 987-1001: Lifchus; Morin
Canadian Judicial Council, Model Jury Instructions - Fundamental Principles, Sections
5.1 and 5.2 and General Principles, Sections 9.1, 9.2, 9.3 - Code Materials at 27; 44
•
January 21
F.H. v. McDougall, 2008 S.C.C. 53 (October 2, 2008) - Code Materials at 80-107
Wrongful Conviction
Guest Lecture: Mr. Hersh Wolch, Q.C.
•
Blurb, Hersh Welch, Q.C- Code Materials at 108
•
Canada's Wrongful Convictions - CBC.ca - Code Materials at 116-120
•
Gavin Carscallan, "Wrongful Convictions" - Code Materials at 109-115
•
"$1.1 M Award for False Conviction", Ottawa Citizen - Code Materials at 121-123
•
Excerpts, Royal Commission on the Donald Marshall Jr., Prosecution, N.S.S.C. - Code
Materials at 124-128
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January 26
Judicial Notice
•
Binnie J., "Judicial Notice: How Much Is Too Much?", L.S. U. C. SpecialLectures 2003:
The Law ofEvidence (Toronto: Irwin Law, 2004) at 543 —Code Materials at 129-154
•
Canadian Judicial Council, Model Jury Instructions -Final Instructions, Section 11.29 —
Code Materials at 69
•
Stewart, 931 to 933
Suggested reading (not required): Stewart 933-973: Potts; Zundel (1987);
Zundel (1990); Krymowski; Find; St. Lawrence Cement Inc.
Relevance
•
Stewart, 3-4; 85-93: Watson
o Group 1 - R.. v. Watson (1996), 108CCC (3d) 310 (Ont. C.A.)
o Group2 - R. v. Morris (1983), 7 CCC (3d) 97 (S.C.C.)
o Group 3 - R. v. Terry (1996), 106CCC(3d)508 (S.C.C.)
January 28
Probative Value v. Prejudicial Effect
•
February 2
February 4
Stewart, 93-128: Seaboyer
Opinion Evidence: Lay and Expert
•
Stewart, 271-276: Graat
•
Stewart, 277-298; 311-322: Mohan; Lavallee
•
Canadian Judicial Council, Model Jury Instructions -Mid-Trial Instructions, Section 7.18
and Final Instructions, Sections 10.3 and 10.4 - Code Materials at 34-35; 48-49
Hearsay
•
The Examination of Witnesses, Stewart, 81-83
• Hearsay orNot? Stewart, 131-154: Teper; Williams; Subramanium; Wildman; (not
Wright v. Tatham); Wysochan; (not McKinnon)
o Group 4 - R. v. Wildman (1981), 60 CCC (2d) 289 (Ont. C.A.)
February 9
o Group 5-R.\. Blastland, [1985] 1 A.C. 41 (H.L.)
o Group 6 - R. v. Evans (1993), 85 CCC. (3d) 97 (S.C.C)
Not Relevant; Not Hearsay; Not Meaningful; Not Admissible:
•
February 11
R. v. Ferris, [1994] A.J. No 19and [1994] S.C.J. No. 97 - Code Materials at 156-181
Some Exceptions to the Rule Against Hearsay
•
Stewart, 154, 157-173, 198-199: (not Bedingfield); Ratten; Clark; O.Brien; Pelletier;
Lucier
o Group 7 - R. v. Clark, [1983] ).J. No. 3125 (C.A.)
February 16
READING WEEK
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170
6-
and 18
February 23
Hearsay: The "Principled" Approach
•
Stewart, 54-59and 208-218: Khan, Smith
o Group 8 - R. v. Smith (1992), 75 CCC (3d) 257 (S.C.C.)
•
Stewart, 267, note 7 - Mapara
• Khelawon and Griffin - Code Materials at 182-204 and 205-222 (both taken from Prof.
Hamish Stewart's "Evidence Casebook Supplement 2010")
o
o
Group 9 - R. v. Khelawon, 2006 SCC 57
Group 10 - R. v. Griffin, 2009 SCC 28
• Canadian Judicial Council, Model Jury Instructions -Mid-Trial Instructions, Sections
7.2, 7.3, and 7.13 and Final Instructions, Sections 11.7 and 11.28 - Code Materials at 2932; 54-55; 69
February 25
Thinking About Truth, Fairness, Justice
• Harold Pinter, "On The Birthday Party IT, in Harold Pinter, Various Voices: Sixty
Years ofProse, Poetry, Politics 1948-2008at 25 - Code Materials at 223-226
• Harold Pinter, "Writing for the Theatre", in Harold Pinter, Various Voices: Sixty Years
ofProse, Poetry, Politics 1948-2008at 29 - Code Materials at 227-233
• Patrick Healy, "Admissibility, Discretion and the Truth ofthe Matter: Developments in
the Law ofEvidence: The 1993-94 term", 6 Supreme Court Law Rev. (2nd) 379 - 387 Code Materials at 234-246
March 2 and
Character
4
•
Putting Character in Issue - Stewart, 411- 412
•
D. M. Paciocco and L. Stuesser, The Law ofEvidence, 5th [Toronto: Irwin Law, Inc.
2008] "Character Evidence: Primary Materiality" pp. 48-53 - Code Materials 247-252
Similar Fact Evidence
• Stewart, 465 to 522: Makin, Smith, Straffen, Boardman, Sweitzer, C.R.B. Handy
o Group 11 - R. v. C.R.B., [1990] 1S.C.R. 717
March 9 and
11
Statements By Accused Persons: Common Law
• Statements topersons in authority, Stewart, 548 to 568: Rothman; Hodgson
•
Grandinetti,JCodt Materials at 253-263
•
Unger, (Q.B., C.A.,National Post, Ottawa Citizen, The Record) Code Materials 264-296
o Group 12- R. v. Rothman (1981) 59 CCC (2d) 30
o
Group 13 - R. v. Hodgson (1998), 127 CCC(3d) 449
o
Group 14- R. v. Unger (1993), 83 CCC. (3d) 228
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171
March 16
Voluntariness: Fear ofprejudice or hope of advantage, Stewart, 570- 572: Ibrahim
Voluntariness: Oppression, Stewart, 577 to 595: Serack; Oickle
Spencer -Code Materials 297-312 (taken from Prof. Hamish Stewart's "Evidence
Casebook Supplement 2009)
o
Group 15 - R. v. Spencer, 2007 SCC 11
Confirmation bySubsequent Facts, Stewart 595-599, St. Lawrence
Wray- Code Materials at 313-328
o
March 18
Group 16 - R. v. Wray, [1971 ] S.C.R. 272
Privilege/Principle Against Self-incrimination
•
Henry - Code Materials 329-344
o Optional reading: Stewart, 881-909: Dubois, Kuldip, Noel
• Stevens, L.K., "The Privilege Against Self-incrimination in Non-Testimonial Contexts",
National Criminal Law Program, May 11, 2009 - Code Materials at 345-359
March 23
'
Improperly obtained evidence
• Patrick Healy, "Lamer, the Exclusion ofEvidence and the Scent ofTruth: 1975 - 2000"
- Code Materials 360-387
Right to Silence underSection 7, Stewart 606-619 - Hebert
March 25
Singh, Code Materials 388-412 (taken from Prof. Hamish Stewart's "Evidence Casebook
Supplement 2009)
o
Group 17 - R. v. Singh, 2007 SCC48
Bringing the Administration ofJustice Into Disrepute, Stewart, 637-642; 700-706
March 30
Collins
Stewart, 711-734 - Stillman
Grant, Code Materials - 413-441
April 1
April 6
Catch-up class
Privilege
•
Stewart, 751 to 786: Pritchard; Smith v. Jones; Brown
April 8
Questions and Answers in anticipation of thefinal examination
April 13
Final Examination - 9 a.m. - 3 hours
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172
LAW 681.24: ETHICAL LAWYERING
COURSE DESCRIPTION
Fall 2009
Professor:
Alice Woolley
Office:
MFH Room 4313
Office Hours:
By appointment
Telephone:
E-mail:
403-220-4013
awoolley@ucalgary.ca
1.
^
INTRODUCTION
Law 681.24 introduces students to issues of lawyers' ethics and professional
responsibility. The primary purpose of the course is for students to become
competent at ethical reasoning in the context of legal practice. To achieve this goal
the course will cover selected topics in "the law of lawyering" - e.g., the LawSociety
of Alberta's Code of Professional Conduct - but will also address the general
question of what it means to be an ethicai lawyer. Students will be expected to
develop their awareness of the various moral values which underlie the legal
system, and to practice how to weigh and apply those values, and the law of
lawyering, to ethical problems.
Law 681.24 also introduces students to the significant issues regarding regulation of
the legal profession. It will cover selected topics relating to the regulation of the
legal profession including reasons for regulation, access to justice and the proper
extent of regulation.
2.
LEARNING OBJECTIVES
By the completion of the course students should be able to:
•
Identify the primary sources of ethical constraints on lawyer
behaviour.
•
Identify some of the ethical problems raised by legal practice, both
generally and specifically.
•
•
Analyze and develop reasoned solutions to ethical problems.
Analyze issues related to the regulation of the legal profession.
173
3.
REQUIRED MATERIALS
Alice Woolley, Richard Devlin, Brent Cotter and John Law, Lawyers'Ethics
and Professional Regulation (Toronto: LexisNexis Canada, 2008) (Available
at the Bookstore)
4.
CLASS LOCATION AND HOURS
Mondays and Wednesdays, 10:30-11:50AM, MFH 3370
5.
EVALUATION
The method of evaluation for Law 681.24 is as follows:
Optional Practice Problem Analysis
Due November 9,2009 at 10:00AM
The problem analysis will be worth 30% of the grade of those students who choose
to write it. The problem will consist of a hypothetical fact situation which students will
be required to resolve based on the materials covered in class and listed in the
Syllabus. No research is required or expected for completion of the problem
analysis. Students may discuss the problem with each other but they are expected
to prepare their answers independently. Students should review the University's
regulations on academic integrity in this regard. All sources used should be
properly attributed.
Students will be given the problem two weeks prior to its due date. The response
may be no more than five (5) pages double spaced, Times New Roman 12 point
font, 1" margins. Students who violate the page or format limitations will be
deducted half a grade (1 numerical point). The problem is to be submitted to the
Student Affairs Office by no later than 10:00AM on the due date. Students who
submit the response later than 10AM will lose half a grade (1 numerical point) if
after that time, and an additional half grade for every subsequent 24 hour period.
Late responses should also be submitted to the Student Affairs Office.
Final Examination.
The final examination will be worth 70% of the grade of students opting to write the
problem analysis, and 100% of the grade of students who do not. It will be a 3 hour
open book examination. The same final examination will be given to all students,
whether they submitted the practice problem of not.
174
3
6.
METHOD OF ARRIVING AT FINAL COURSE GRADE
Problem Analysis:
The problem analysis will be assigned a numerical value between 0 and 13 as
follows:
A+
=
A
=
12
=
11
AB+
13
=
10
B
=
9
B-
=
8
=
7
C+
C
CD+
D
DF+
F
=
6
=
5
=
4
=
3
=
2
=
1
=
0
Examination:
Each question response on the examination will be assigned a numerical
value between 0 and 13 as above (i.e., A+=13 etc.). These grades will then
be combined (on the basis provided for by the examination) and a numerical
grade between 0 and 13 calculated to two decimal places determined for the
examination as a whole.
175
Final Grade:
The numerical grades determined for the problems and examination on
these bases will then be combined on the weightings indicated above (i.e.
30% + 70% or 100%) to determine the final course grade as follows:
A+
=
A
=
AB+
=
=
B
=
B-
=
C+
C
CD+
D
F
=
=
=
=
=
=
12.50-13.00
11.50-12.49
10.50-11.49
9.50-10.49
8.50-9.49
7.50-8.49
6.50-7.49
5.50-6.49
4.50-5.49
3.50-4.49
1.50-3.49
0.00-1.49
Faculty Marking Policy
Please note that student grades may be adjusted to ensure compliance of
the course grades with the Faculty's B median and percentage of A grade
policies.
7.
FEEDBACK
Feedback will be provided to students in the form of written comments on the
problem analysis and examination. Students are also welcome to come and meet
with me to discuss the grade received.
176
LAW 681.24: ETHICAL LAWYERING
COURSE SYLLABUS
FALL 2009
Professor:
Alice Woolley
MFH Room 4317
220-4013
awoo//eW5)ucalQarv.ca
Class Time:
Mondays and Wednesdays 10:30-11:50AM
PLEASE NOTE:
This syllabus is subject to change as course circumstances
warrant.
References are to Woolley et al. Lawyers' Ethics and
Professional Regulation ("Lawyers' Ethics").
Classes One (September 9)
Course Introduction
Introduction to Lawyers' Ethics and Professional
Regulation
Required Reading:
• Introduction to lawyers' ethics
o Introduction (Lawyers'Ethics pp. 1-2)
o Jabour v. Law Society of British Columbia (Lawyers'
Ethics pp. 2-6)
o What are Lawyers' Ethics and Professional Regulation?
(Lawyers'Ethics p. 7)
o Sources (Lawyers' Ethics pp. 7-10)
o Optional: Some Ways of Thinking About "Normal" Ethics
(Lawyers'Ethics pp. 10-15)
Class Discussion - all students
• Scenarios 1 and 2 (Lawyers'Ethics p. 6)
• "Suicide and confidentiality" hypothetical (Lawyers' Ethics p. 10)
177
Classes Two andThree (September 14 and 16):
Lawyers' Fundamental Ethical Obligations
Loyalty
Justice
Readings:
•
Integrity and Fidelity to Law
Introduction to Legal Ethics
o What does it mean to be an ethical lawyer? (Lawyers'
Ethics pp. 15-31; 43-46
o W. Bradley Wendel, "Professionalism as Interpretation"
(2005) 99 Northwestern Law Review 1169 (PDF on
Blackboard - pp. 1-42)
To be prepared for September 14 by Discussant Group One
• Note 1 (Lawyers'Ethics p. 22)
• Note 3 (Lawyers' Ethics p. 22-23)
• Scenario 4 (Lawyers' Ethics p. 23)
To be prepared for September 16 by Discussant Group Two
• Note 1 (Lawyers'Ethics p. 29)
• Scenario 5 (Lawyers' Ethics p. 30)
• Scenario 6 (Lawyers' Ethics p. 45)
178
Classes Four and Five (September 21 and23):
The Lawyer-Client Relationship I
Readings:
Formation of the Lawyer-Client Relationship
• Formation of the Lawyer-Client Relationship
o Introduction (Lawyers' Ethics pp. 129-130 (not CBA
Rules)
o Notes and Questions (after reading Alberta rules)
(Lawyers'Ethics pp. 132-133)
o Solicitation (Lawyers' Ethics pp. 133-147)
o Choice of Clients (Lawyers' Ethics pp. 163-171)
• Alberta Code of Professional Conduct,
o Chapter 1 Rule 5
o Chapter 5
To beprepared for September 21 by Discussant Group Three
• Note 4 (Lawyers' Ethics pp. 132-133)
• The question in note 4 with respect to this:
http://www.voutube.com/watch?v=3XJRMc0RUBM (will also
be shown in class)
• Notes 1 and 3 (Lawyers'Ethics p. 146)
• Additional question: Mr. Merchant modified his later solicitation
of prospective clients with this phrase: "if this Agreement is at
variance with any written communication from Merchant Law
Group, then the interpretation most favourable to the client will
govern." Does this remove the issue of misleading clients
identified by the Law Society of Saskatchewan in the Merchant
case excerpted in the casebook?
To be prepared for September 23by Discussant Group Four
• Notes 3 and 4 (Lawyers' Ethics p. 167)
• Scenarios 1, 2, 3 and 6 (Lawyers' Ethics p. 169-170; Be sure to
identify reasons for your answer and, in particular, reasons in
light of the "sources" of ethical guidance for lawyers identified in
Chapter One)
179
Class Six (September 28):
The Lawyer-Client Relationship II
Competence
Readings:
• Competence and Quality of Service
o Introduction (Lawyers' Ethics 174-175)
o Notes and Questions (after reading Alberta rules)
(Lawyers' Ethics 177-178)
o Nova Scotia Barristers' Society v. Richey (Lawvers'
Ethics pp. 178-182);
o Cultural Competence (Lawyers' Ethics pp. 184-85)
o R. v. Kina (on Blackboard, para. 1-7, 16, 28-33, 39-40
50-51,57-67.
• Alberta Code of Professional Conduct
o Chapter 2
To beprepared byDiscussant Group Five
• Note 3 (Lawyers' Ethics p. 178)
• Scenario 7, 8and 11 (Lawyers' Ethics p. 178,182-184)
• Discussion question: Was the solicitation letter sent by Tony
Merchant "culturally competent"?
180
Class Seven (September 30):
The Lawyer-Client Relationship III
Readings:
Termination of the Lawyer-Client Relationship
• Termination ofthe Lawyer-Client Relationship
o Introduction and the Retainer (Lawyers' Ethics pp 190191)
o Notes and Questions (after reading Alberta Rules)
(Lawyers'Ethics pp. 192-195)
o Court Approval ofWithdrawal (195-96)
o Withdrawal in Criminal Cases - R. v. C (D.D) (1996)
110 C.C.C. (3d) 323 (On Blackboard)
• Optional: R. v. Morgan 2008 YKCA 7 (leave
granted, November 2008) (On Blackboard)
o Whistleblowing and up the ladder reporting (Lawyers'
Ethics pp. 197-199)
• Alberta Code of Professional Conduct,
o Chapter 14
To be prepared by Discussant Group Seven
• Note 2 (Lawyers' Ethics p. 191)
• Note 5 (Lawyers' Ethics p. 192)
• Scenario 13 (Lawyers' Ethics p. 192)
• Scenario 14 (Lawyers' Ethics p. 194)
181
Classes Eight and Nine (October 5 and October 7)
Ethics in Advocacy
Readings:
•
Ethics in Advocacy
o Introduction and Visions of the Advocate (Lawyers'
Ethics pp. 203-205)
o Ethics in pre-trial procedures (Lawyers' Ethics pp 205219)
o Ethics atTrial (Lawyers' Ethics pp. 219-233)
• Alberta Code of Professional Conduct,
o Chapter 1, Rules 1,3 and 6 with commentaries
o Chapter 3, Rules 1-3 with commentaries
o Chapter 4, Rules 1-4 with commentaries
o Chapter 10, Rules 1-26 with commentaries G.1-C 3 C 4C.26
' '
To be prepared for October 5by Discussant Group Eight
• Notes 1 and 4 (Lawyers' Ethics p. 210) (Please consider your
answer to these questions in light of "Professionalism as
Interpretation", week one)
• Scenario 1 (Lawyers' Ethics p. 211)
• Note 1/Scenario 2 (Lawyers' Ethics p. 217)
To be prepared for October 7by Discussant Group Nine
• Note 1 (Lawyers'Ethics p. 230)
• Scenario 5 (Lawyers' Ethics pp. 230-31)
• Note 1 (Lawyers'Ethics p. 236)
• Scenarios 6 and 7 (Lawyers' Ethics pp. 236-37)
October 12: Thanksgiving, No class
182
Class Ten, Eleven and Twelve
CLASSES TEN-TWELVE WILL BE HELD IN 2370 (BOTH SECTIONS)
October 14 (October 19 class is CANCELLED)
October 21
MAKE-UP CLASS - Friday. October 23,12:30-1:50
Ethics in Advocacy - Civility
Privilege and Confidentiality
Readings:
•
Ethics in Advocacy
o Advocacy and Civility (Lawyers' Ethics pp. 233-238)
• Optional: Alice Woolley, "Does Civility Matter?" (2008)
46 Osgoode Hall L.J. 175 (On Blackboard)
• Confidentiality and Privilege
o Introduction and Overview (Lawyers' Ethics pp. 241 -249)
o The Principle and Some Exceptions (Lawyers' Ethics pp
249-262)
o The "Innocence at Stake" Exception (Lawyers' Ethics pp
262-274)
o Confidentiality, Law Enforcement and National Security
(Lawyers' Ethics pp. 276-286)
• Alberta Codeof Professional Conduct,
o Chapter 7 (excluding Rule 6) Rules with commentaries
G.1-C.7, C.8.C.9
To beprepared for October 14 by Discussant Group Ten
• Notes 2-3 (Lawyers' Ethics pp. 248-49)
• Note 2 (Lawyers' Ethics p. 259)
• Scenarios 1-3 (Lawyers' Ethics p. 262)
To beprepared for October 21 by Discussant Group One
• Note 2 (Lawyers' Ethics p. 272)
• Note 3 (Lawyers'Ethics p. 274)
• Note 2 (Lawyers'Ethics p. 287)
183
8
Classes Thirteen and Fourteen (October 26and 28)
Conflicts of Interest I
Client-Client Conflicts
Readings:
• The Duty of Loyalty and Conflicts of Interest
o Introduction (Lawyers' Ethics pp. 289-290)
o Client-Client Conflicts (Lawyers' Ethics pp. 291 -332)
• Optional: Alice Woolley, "Conflicting Interests,
Conflicting Judgments and the Ethical Obligations
of Lawyers and Judges", ABLawg (On Blackboard)
•
Alberta Code of Professional Conduct
o Chapter 7, Rule 6 with commentary
o Chapter 6 Rules 1-6 with commentaries
To beprepared for October 21 by Discussant Group Two
• Notes 1-2 (Lawyers' Ethics p. 303)
• Note 6 (Lawyers' Ethics p. 304 - look at Alberta Rules)
• Scenarios 2 and 3 (Lawyers' Ethics p. 316)
To beprepared for October 26by Discussant Group Three
• Note 1 (Lawyers'Ethics p. 313)
• Note 6 (Lawyers' Ethics p. 315)
• Scenario 1 (Lawyers'Ethics p. 315)
• Notes 1 and 3 (Lawyers' Ethics p. 330)
Class Fifteen (November 2):
Conflicts of Interest II
Lawyer-Client Conflicts
Readings:
• CBC v. Stewart (Lawyers' Ethics pp. 148-165)
• Lawyer-Client Conflicts (Lawyers' Ethics pp. 332-344)
•
Alberta Code of Professional Conduct
o Chapter 6 Rules 6-9 with commentaries
To be prepared byDiscussant Group Four
• -Notes 2 and 5 (Lawyers'Ethics p. 163)
• Note 2 (Lawyers' Ethics p. 342)
• Scenario 4 (Lawyers' Ethics p. 343)
• Note 4 (Lawyers' Ethics pp. 342-43)
• Scenario 6 (Lawyers' Ethics p. 343)
184
Classes Sixteen and Seventeen (November 4 and November 9):
Criminal law
Introduction
Ethical Duties of Crown Counsel
Ethical Duties of Defence Counsel
Readings:
• Ethical Duties of Crown Counsel (Lawyers' Ethics pp. 345-368)
•
Ethical Duties of Defence Counsel
o Introduction: The Duty to the Client (Lawyers' Ethics pp
373-4)
o Defending the Guilty Client and the Related Problem of
Not Misleading the Court (Lawyers'Ethics pp. 374-381)
o Taking Custody and Control of Real Evidence (Lawyers'
Ethics pp. 381-395)
o Negotiating a Guilty Plea and Sentence (Lawyers' Ethics
pp. 395-402)
• Alberta Code of Professional Conduct,
o Chapter 10 Rules 27 and 28 with commentaries
To beprepared for November 2 by Discussant Group Five
• Note 2 (Lawyers'Ethics p. 356)
• Scenario 2 (Lawyers'Ethics p. 358)
• Scenarios 4 and 6 (Lawyers' Ethics pp. 366-368)
• Scenarios 9 and 11 (Lawyers' Ethics pp. 380-81)
To beprepared for November 4 by Discussant Group Six
• Note 3 (Lawyers' Ethics pp. 393-94)
• Scenarios 12and 13 (Lawyers' Ethics p. 394-395)
• Notes 2-3 (Lawyers' Ethics p. 401)
• Scenario 14 (Lawyers' Ethics p. 401)
OPTIONAL PRACTICE PROBLEM DUE NOVEMBER 9 AT
10:00AM AT STUDENT SERVICES
185
10
Class Eighteen (November 16)
Readings:
Lawyers in Organizational Settings: Government Lawyers
• Government Lawyers (Lawyers' Ethics pp. 469-484)
To be prepared byDiscussant Group Seven
• Note 3 (Lawyers' Ethics p. 477)
• Scenario 3 (Lawyers' Ethics pp. 477-78)
• Notes 1-2 (Lawyers' Ethics p. 482-483)
• Scenario 4 (Lawyers' Ethics pp. 483-84)
Reading Days (November 11-15)
Class Nineteen (November 18):
Introduction to Regulation
Access to Justice (Intro)
Readings:
• Why do we regulate lawyers? (On Blackboard)
•
Access to Justice
o Introduction (Lawyers'Ethics pp. 485)
o Constitutional Right to Access to Justice? (Lawyers'
Ethics pp. 485-489)
o What is the Access to Justice Problem? (Lawyers' Ethics
pp. 489-490)
o Whose Problem? (Lawyers' Ethics pp. 490-491)
186
11
Class Twenty (November 23):
Access to Justice (cont'd)
Issues in Regulation I
The Good Character Requirement
Readings:
• Lawyers' Special Obligation to Foster Access to Justice
(Lawyers'Ethics pp. 494-507)
•
Issues in Regulation
o Introduction (Lawyers' Ethics pp. 519-520)
o The "Good Character Requirement" (Lawyers' Ethics dd
519-531)
HP'
To beprepared by Discussant Group Eight
• Scenario 2 (Lawyers' Ethics pp. 515-16)
• Notes 2, 5, 6 (Lawyers'Ethics pp. 530-31)
Class Twenty-One (November 25):
The Good Character Requirement (cont'd)
Readings:
Issues in Regulation II
Extra-Professional Misconduct
• Extra-Professional Misconduct (Lawyers' Ethics pp. 531 -546)
To beprepared by Discussant Group Nine
• Notes 1, 3, 5 and 6 (Lawyers' Ethics pp. 545-46)
• Scenario 1 (Lawyers'Ethics p. 546)
Class Twenty-Two (November 30)
Readings:
Issues in Regulation III
Sanctioning Lawyers for Misconduct
Regulating Unauthorized Practice
• Sanctioning Lawyers for Misconduct (Lawyers' Ethics pp. 546556)
• Regulating the Unauthorized Practice of Law (Lawyers' Ethics
pp. 557-574)
To beprepared byDiscussant Group Ten
• Note 2 (Lawyers' Ethics p. 557)
• Notes 1, 3 and 4 (Lawyers' Ethics pp. 573-4)
187
12
Class Twenty-Three (November 2):
Review
188
I7GW#
LAW 681.24: ETHICAL LAWYERING
COURSE DESCRIPTION
Fall 2009
Instructor:
Office:
Deborah Petriuk
MFH Room 4304
Office Hours:
By appointment
Telephone:
403-630-4739
E-mail:
petriuk ©shaw.ca
INTRODUCTION
Law 681.24 introduces students to issues of lawyers' ethics and professional
responsibility. The primary purpose of the course is for students to become
competent at ethical reasoning in the context of legal practice. To achieve this goal
the course will cover selected topics in 'the law of lawyering" - e.g., the Law Society
of Alberta's Code of Professional Conduct - but will also address the general
question of what it means to be an ethical lawyer. Students will be expected to
develop their awareness of the various moral values which underlie the legal
system, and to practice how to weigh and apply those values, and the law of
lawyering, to ethical problems.
Law 681.24 also introduces students to the significant issues regarding regulation of
the legal profession. It will cover selected topics relating to the regulation of the
legal profession including reasons for regulation, access to justice and the proper
extent of regulation.
2.
K
LEARNING OBJECTIVES
By the completion ofthe course students should be able to:
• Identify the primary sources of ethical constraints on lawyer
behaviour.
• Identify some of the ethical problems raised by legal practice both
generally and specifically.
• Analyze and develop reasoned solutions to ethical problems.
• Analyze issues related to the regulation of the legal profession.
189
3.
REQUIRED MATERIALS
Alice Woolley, Richard Devlin, Brent Cotter and John Law, Lawyers' Ethics
and Professional Regulation (Toronto: LexisNexis Canada, 2008) (Available
at the Bookstore)
4.
CLASS LOCATION AND HOURS
Mondays and Wednesdays, 10:30-11:50AM, MFH 3370
5.
EVALUATION
The method of evaluation for Law 681.24 is as follows:
Optional Practice Problem Analysis
Due November 9, 2009 at 10:00AM
The problem analysis will be worth 30% of the grade of those students who choose
to write it. The problem will consist of a hypothetical fact situation which students will
be required to resolve based on the materials covered in class and listed in the
Syllabus. No research is required or expected for completion of the problem
analysis. Students may discuss the problem with each other but they are expected
to prepare their answers independently. Students should review the University's
regulations on academic integrity in this regard. All sources used should be
properly attributed.
Students will be given the problem two weeks prior to its due date. The response
may be no more than five (5) pages double spaced, Times New Roman 12 point
font, 1" margins. Students who violate the page or format limitations will be
deducted half a grade (1 numerical point). The problem is to be submitted to the
Student Affairs Office by no later than 10:00AM on the due date. Students who
submit the response late will lose half a grade (1 numerical point) for each day the
response is late. Late responses should also be submitted to the Student Affairs
Office.
Final Examination.
The final examination will be worth 70% of the grade of students opting to write the
problem analysis, and 100% of the grade of students who do not. It will be a 3 hour
open book examination. The same final examination will be given to all students,
whether they submitted the practice problem of not.
190
3
6.
METHOD OF ARRIVING AT FINAL COURSE GRADE
Problem Analysis:
The problem analysis will be assigned a numerical value between 0 and 13 as
follows:
A+
B+
B
B-
C+
C
CD+
D
DF+
F
13
=
A
A-
=
12
=
11
=
10
=
9
=
8
zz
7
=
6
=
5
=
4
=
3
=
2
=
1
=
0
Examination:
Each question response on the examination will be assigned a numerical
value between 0and 13 as above (i.e., A+=13 etc.). These grades will then
be combined (on the basis provided for by the examination) and a numerical
grade between 0and 13 calculated to two decimal places determined for the
examination as a whole.
191
Final Grade:
The numerical grades determined for the problems and examination on
these bases will then be combined on the weightings indicated above (i.e.
30% + 70% or 100%) to determine the final course grade as follows:
A+
=
12.50-13.00
A
=
11.50-12.49
A-
=
10.50-11.49
B+
=
9.50-10.49
B
=
8.50-9.49
=
7.50-8.49
BC+
C
CD+
D
F
=
=
6.50-7.49
5.50-6.49
=
4.50-5.49
=
3.50-4.49
=
1.50-3.49
=
0.00-1.49
Faculty Marking Policy
Please note that student grades may be adjusted to ensure compliance of
the course grades with the Faculty's B median and percentage of A grade
policies.
FEEDBACK
Feedback will be provided to students in the form of written comments on the
problem analysis and examination. Students are also welcome to come and meet
with me to discuss the grade received.
192
LAW 681.24: ETHICAL LAWYERING
COURSE SYLLABUS
FALL 2009
Instructor:
Deborah Petriuk
MFH Room 4304 (office hours by appointment)
403-630-4739
petriuk ©shaw.ca
Class Time:
Mondays and Wednesdays 10:30-11:50AM
MFH 3360
PLEASE NOTE:
This syllabus is subject to change as course circumstances
warrant.
References are to Woolley et al. Lawyers' Ethics and
Professional Regulation ("Lawyers' Ethics").
Class One (September 9)
Course Introduction
Introduction to Lawyers' Ethics and Professional
Regulation
Required Reading:
• Introduction to lawyers' ethics
o Introduction (Lawyers' Ethics pp. 1-2)
o Jabour v. Law Society of British Columbia (Lawyers'
Ethicspp. 2-6)
o What are Lawyers' Ethics and Professional Regulation?
(Lawyers'Ethics p. 7)
o Sources (Lawyers' Ethics pp. 7-10)
Class Discussion - all students
• "Suicide and confidentiality" hypothetical (Lawyers' Ethics p.
193
Classes Two and Three (September 14 and 16):
Lawyers' Fundamental Ethical Obligations
Loyalty
Justice
Integrity and Fidelity to Law
Readings:
• Introduction to Legal Ethics
o What does it mean to be an ethical lawyer? (Lawyers'
Ethics pp. 15-46
To be prepared for September 14 by Discussant Group One
• Note 1 (Lawyers' Ethics p. 22)
• Note 3 (Lawyers' Ethics p. 22-23)
• Scenario 4 (Lawyers' Ethics p. 23)
To be prepared for September 16 by Discussant Group Two
• Note 1 (Lawyers' Ethics p. 29)
• Scenario 5 (Lawyers' Ethics p. 30)
• Scenario 6 (Lawyers' Ethics p. 45)
Classes Four and Five (September 21 and 23):
The Lawyer-Client Relationship I
Formation of the Lawyer-Client Relationship
Readings:
• Formation of the Lawyer-Client Relationship
o Introduction (Lawyers' Ethics pp. 129-130 (not CBA
Rules)
o Notes and Questions (after reading Alberta rules)
(Lawyers' Ethics pp. 132-133)
o Solicitation (Lawyers' Ethics pp. 133-147)
o Choice of Clients (Lawyers' Ethics pp. 163-171)
• Alberta Code of Professional Conduct,
o Chapter 1 Rule 5
o Chapter 5
To be prepared for September 21 by Discussant Group Three
• Note 4 (Lawyers' Ethics pp. 132-133)
• The question in note 4 with respect to this:
http://www.voutube.com/watch?v=3XJRMcORUBM (will also
be shown in class)
• Additional question: Mr. Merchant modified his later solicitation
of prospective clients with this phrase: "if this Agreement is at
variance with any written communication from Merchant Law
Group, then the interpretation most favourable to the client will
194
govern."
Does this remove the issue of misleading clients
identified by the Law Society of Saskatchewan in the Merchant
case excerpted in the casebook?
To beprepared for September 23by Discussant Group Four
• Notes 3 and 4 (Lawyers' Ethics p. 167)
• Scenarios 1, 2, 3 and 6 (Lawyers' Ethics p. 169-170; Be sure to
identify reasons for your answer and, in particular, reasons in
light of the "sources" of ethical guidance for lawyers identified in
Chapter One)
Class Six (September 28):
The Lawyer-Client Relationship II
Competence
Readings:
• Competence and Quality of Service
o Introduction (Lawyers' Ethics 174-175)
o Notes and Questions (after reading Alberta rules)
(Lawyers' Ethics 177-178)
o Nova Scotia Barristers' Society v. Richey (Lawyers'
Ethics pp. 178-182);
o Cultural Competence (Lawyers' Ethics pp. 184-85)
o R. v. Kina (on Blackboard, para. 1-7, 16, 28-33, 39-40
50-51,57-67.
•
Alberta Code of Professional Conduct
o Chapter 2
To beprepared byDiscussant Group Five
• Note 3 (Lawyers' Ethics p. 178)
• Scenarios 7 and 8 (Lawyers' Ethics p. 178, 182-184)
• Discussion question: Was the solicitation letter sent by Tony
Merchant "culturally competent"?
195
Class Seven (September 30):
The Lawyer-Client Relationship III
Termination of the Lawyer-Client Relationship
Readings:
• Termination of the Lawyer-Client Relationship
o Introduction and the Retainer (Lawyers' Ethics pp. 190191)
o Notes and Questions (after reading Alberta Rules)
(Lawyers' Ethics pp. 192-195)
o Court Approval of Withdrawal (194-95)
o Withdrawal in Criminal Cases - R. v. C (D.D.) (1996),
110 C.C.C. (3d) 323 (On Blackboard)
• Optional: R. v. Morgan 2008 YKCA 7 (leave
granted, November 2008) (On Blackboard)
o Whistleblowing and up the ladder reporting (Lawyers'
Ethics pp. 197-199)
•
Alberta Code of Professional Conduct,
o Chapter 14
To be prepared by Discussant Group Seven
• Note 2 (Lawyers' Ethics p. 191)
• Scenario 13 (Lawyers' Ethics p. 192)
• Scenario 14 (Lawyers' Ethics p. 194)
196
Classes Eight andNine (October 5 and October 7)
Ethics in Advocacy
Readings:
•
Ethics in Advocacy
o Introduction and Visions of the Advocate (Lawyers'
Ethics pp. 203-205)
o Ethics in pre-trial procedures (Lawyers' Ethics pp. 205219)
o Ethics at Trial (Lawyers' Ethics pp. 219-232)
• Alberta Code of Professional Conduct,
o Chapter 1, Rules 1, 3 and 6 with commentaries
o Chapter 3, Rules 1-3 with commentaries
o Chapter 4, Rules 1-4 with commentaries
o Chapter 10, Rules 1-26 with commentaries G.1-C 3 C 4C.26
To beprepared for October 5 by Discussant Group Eight
• Notes 1 and 4 (Lawyers' Ethics p. 210) (Please consider your
answer to these questions in light of "Professionalism as
Interpretation", week one)
• Scenario 1 (Lawyers' Ethics p. 211)
• Note 1/Scenario 2 (Lawyers' Ethics p. 217)
To be prepared for October 7by Discussant Group Nine
• Note 1 (Lawyers' Ethics p. 230)
• Scenario 5 (Lawyers' Ethics pp. 230-31)
• Note 1 (Lawyers' Ethics p. 236)
• Scenarios 6 and 7 (Lawyers' Ethics pp. 236-37)
October 12: Thanksgiving, No class
197
Class Ten, Eleven and Twelve
CLASSES TEN-TWELVE WILL BE HELD IN2370 (BOTH SECTIONS)
October 14 (October 19 class is CANCELLED)
October 21
MAKE-UP CLASS - Friday. October 23,12:30-1:50
Ethics in Advocacy - Civility
Privilege and Confidentiality
Readings'.
• Ethics in Advocacy
o Advocacy and Civility (Lawyers' Ethics pp. 233-238)
•
•
Optional: Alice Woolley, "Does Civility Matter" (2008)
46 Osgoode HallL.J. 175 (On Blackboard)
Confidentiality and Privilege
o Introduction and Overview (Lawyers' Ethics pp. 241-249)
o The Principle and Some Exceptions (Lawyers' Ethics pp.
249-262)
o The "Innocence at Stake" Exception (Lawyers' Ethics pp.
262-274)
o Confidentiality, Law Enforcement and National Security
(Lawyers' Ethics pp. 276-286)
•
Alberta Code of Professional Conduct,
o Chapter 7 (excluding Rule 6) Rules with commentaries
G.1-C.7, C.8.C.9
To be prepared for October 14 by Discussant Group Ten
• Notes 2-3 (Lawyers' Ethics pp. 248-49)
• Note 2 (Lawyers' Ethics p. 259)
• Scenarios 1-3 (Lawyers' Ethics p. 262)
To be prepared for October 21 by Discussant Group One
• Note 2 (Lawyers' Ethics p. 272)
•
•
Note 3 (Lawyers' Ethics p. 274)
Note 2 (Lawyers' Ethics p. 287)
198
Classes Thirteen andFourteen (October 26 and28)
Conflicts of Interest I
Client-Client Conflicts
Readings:
•
The Duty of Loyalty and Conflicts of Interest
o Introduction (Lawyers' Ethics pp. 289-290)
o Client-Client Conflicts (Lawyers' Ethics pp. 291-332)
• Optional: Alice Woolley, "Conflicting Interests,
Conflicting Judgments and the Ethical Obligations
of Lawyers and Judges", ABLawg (On Blackboard)
•
Alberta Code of Professional Conduct
o Chapter 7, Rule 6 with commentary
o Chapter 6 Rules 1-6 with commentaries
To beprepared for October21 by Discussant Group Two
• Note 1(Lawyers' Ethics p. 303)
• Note 6 (Lawyers' Ethics p. 304 - look at Alberta Rules)
• Scenarios 2 and 3 (Lawyers' Ethics p. 316)
To beprepared for October26by Discussant Group Three
• Note 1 (Lawyers' Ethics p. 313)
• Note 6 (Lawyers' Ethics p. 315)
• Scenario 1 (Lawyers' Ethics p. 315)
• Notes 1 and 3 (Lawyers' Ethics p. 330)
Class Fifteen (December 2):
Conflicts of Interest II
Lawyer-Client Conflicts
Readings:
• CBC v. Stewart (Lawyers' Ethics pp. 147-163)
• Lawyer-Client Conflicts (Lawyers' Ethics pp. 332-344)
•
Alberta Code of Professional Conduct
o Chapter 6 Rules 6-9 with commentaries
To beprepared byDiscussant Group Four
• Notes 2 and 5 (Lawyers' Ethics p. 163)
• Note 2 (Lawyers' Ethics p. 342)
• Scenario 4 (Lawyers' Ethics p. 343)
•
Note 4 (Lawyers' Ethics p. 343)
• Scenario 6 (Lawyers' Ethics pp. 343-4)
199
8
Classes Sixteen and Seventeen (November 4 and November 9):
Criminal law
Introduction
Ethical Duties of Crown Counsel
Ethical Duties of Defence Counsel
Readings:
• Ethical Duties of Crown Counsel (Lawyers' Ethics pp. 345-368)
•
Ethical Duties of Defence Counsel
o
o
o
o
•
Introduction: The Duty to the Client (Lawyers' Ethics pp.
373-4)
Defending the Guilty Client and the Related Problem of
Not Misleading the Court (Lawyers' Ethics pp. 374-379)
Taking Custody and Control of Real Evidence (Lawyers'
Ethics pp. 381-394)
Negotiating a Guilty Plea and Sentence (Lawyers' Ethics
pp. 395-400)
Alberta Code of Professional Conduct,
o
Chapter 10 Rules 27 and 28 with commentaries
To be prepared for November 2 by Discussant Group Five
• Note 2 (Lawyers' Ethics p. 356)
• Scenario 2 (Lawyers' Ethics p. 358)
• Scenarios 4 and 6 (Lawyers' Ethics pp. 366-368)
• Scenarios 9 and 11 (Lawyers' Ethics pp. 380-81)
To be prepared for November 4 by Discussant Group Six
• Note 3 (Lawyers' Ethics pp. 393)
• Scenarios 12 and 13 (Lawyers' Ethics p. 394-395)
• Notes 2-3 (Lawyers' Ethics p. 401)
• Scenario 14 (Lawyers' Ethics p. 401)
OPTIONAL PRACTICE PROBLEM
10:00AM AT STUDENT SERVICES
DUE
NOVEMBER
9
AT
200
Class Eighteen (November 16)
Readings:
Lawyers in Organizational Settings: Government Lawyers
• Government Lawyers (Lawyers' Ethics pp. 469-484)
To be prepared by Discussant Group Seven
• Note 3 (Lawyers' Ethics p. 477)
• Scenario 3 (Lawyers' Ethics pp. 477-78)
• Notes 1-2 (Lawyers' Ethics p. 482-483)
• Scenario 4 (Lawyers' Ethics pp. 483-84)
Reading Days (November 11-15)
Class Nineteen (November 18):
Introduction to Regulation
Access to Justice (Intro)
Readings:
• Why do we regulate lawyers? (On Blackboard)
•
Access to Justice
o Introduction (Lawyers' Ethics pp. 485)
o Constitutional Right to Access to Justice? (Lawyers'
Ethics pp. 485-489)
o What is the Access to Justice Problem? (Lawyers' Ethics
pp. 489-490)
o Whose Problem? (Lawyers' Ethics pp. 490-491)
201
10
Class Twenty (November 23):
Access to Justice (cont'd)
Issues in Regulation I
The Good Character Requirement
Readings:
• Lawyers' Special Obligation to Foster Access to Justice
(Lawyers' Ethics pp. 494-507)
• Issues in Regulation
o Introduction (Lawyers' Ethics pp. 519-520)
o The "Good Character Requirement" (Lawyers' Ethics pp.
519-531)
To be prepared by Discussant Group Eight
• Scenario 2 (Lawyers' Ethics pp. 515-16)
• Notes 2, 5, 6 (Lawyers' Ethics pp. 530-31)
Class Twenty-One (November 25):
The Good Character Requirement (cont'd)
Issues in Regulation II
Extra-Professional Misconduct
Readings:
• Extra-Professional Misconduct (Lawyers' Ethics pp. 531 -546)
To be prepared by Discussant Group Nine
• Notes 1,3,5 and 6 (Lawyers' Ethics pp. 545-46)
• Scenario 1 (Lawyers' Ethics p. 546)
Class Twenty-Two (November 30)
Issues in Regulation III
Sanctioning Lawyers for Misconduct
Regulating Unauthorized Practice
Readings:
• Sanctioning Lawyers for Misconduct (Lawyers' Ethics pp. 546-
~ 556)
• Regulating the Unauthorized Practice of Law (Lawyers' Ethics
pp. 557-573)
To be prepared by Discussant Group Ten
• Note 2 (Lawyers' Ethics p. 557)
• Notes 1 and 3 (Lawyers' Ethics pp. 573-4)
202
11
Class Twenty-Three (November 2):
Review
203
urn
DISPUTE RESOLUTION II
January 4 to January 8, 2010
fe8U6
INSTRUCTORS:
Elaine Seifert, Q.C.
403 410-3806
eseifert@dispute-resolution.ca
Laurie McMurchie Q.C.
403 410-3801
lmcmurchie@dispute-resolution.ca
Overview
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coursefocus
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will bnefly explore
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on negotiation as ,t is the corner stone to most ADR processes. We will focus
predominantly on acquiring and practicing negotiation skills.
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includes
mediation/arbitration, arbitration, collaborative practice and court assisted dispute
resolution processes such as early neutral evaluation (the Dispute Resolution Office
Program ,n Calgary), Judicial Dispute Resolution conferences and Pretrial conferences
Most lawyers irrespective of their specialty will have to negotiate. In addition to
providing an overview of ADR processes, this course aims to improve both Jour
unde standing of negotiation and your effectiveness as a negotiator. We will draw from
the literature and research in the field of ADR and the vast experience of you?
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t0 ' deVSl0P ^ UnderStandin9 of negotiation ^nd obstacles to
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K£:Jm».f 9r°UP an,iKthen haVe Sma"er break out 9rouPs for Prancing the skills
vour
LTgroups
9r°UPSyouW"Lf
,nstmcted
and COached
negotiators.
your small
will spend
a significant
amount^ of^Perienced
time in practice
exercisesWithin
and
smutated role plays The homework will consist generally of reading fact scenarios and
w^Z?^
™e onfina'Friday
6XamJanuary
Wi" COnsist
of a^
Person the
teamemphasis
negofeting
with
another two*P'ay%
person team
8, 2010.
Throughout
win
be placed on improving negotiation abilities. This course is an intense course whteh
will require fulltime attendance and afair amount of work both in and outsidfof^lass
time, including preparation and reading in advance of the commencement of the course.
204
COURSE MATERIALS
1. Fisher, Ury and Patton, Getting to Yes: Negotiating Agreements without Giving in,
2nd Ed. (1991) - Required Reading
2. Interest Based Negotiation Workbook - available from the instructors at the
commencement of the course for a cost of $10.00.
3. Mnookin, Peppet & Tulumello, Beyond Winning: Creating Value in Deais and
Disputes, (2004) - Recommended Reading
"Getting to Yes" and "Beyond Winning" will be available in the University Bookstore.
We encourage you to purchase "Getting to Yes" as it is required. "Beyond Winning" will
also be very helpful as it is directed specifically at lawyers.
You will also need the Law Society of Alberta Code of Conduct, especially Chapter 11,
Lawyers as Negotiators. A PDF Format is available at the Law Society of Alberta
Website, www.lawsocietvalberta.com or on the course Blackboard.
There will also be some supplemental material made available at the commencement of
class
You will be divided into two person negotiating teams by your small group instructors.
Simulated role plays will be provided during the course. The practice role plays will be
disturbed by the small group instructors on Tuesday through Thursday. The negotiation
partners for the final role play will be assigned at the beginning of the week by Chantal
Pegg and the final role play will be distributed on Tuesday January 5 at the end of class
by Chantal Pegg. These role plays are copyrighted so may not be copied. Each
student will be given confidential role play instructions which we request you do not
share with students that have different role play instructions. We have purchased many
of these role plays from Harvard Program on Negotiation for your use. There will be no
cost to you for theses role plays.
COURSE RERQUIREMENTS
1.
2.
Pre-course preparation: Read "Getting to Yes" d before the commencement of
the course as we will be starting right in with our exercises and role plays on
January 4, 2010. The course is intense with nightly assignments so you will not
have time to do the reading once the course starts.
Attendance and preparation: Your attendance and preparation are critical in
this course. Each day you will be paired to negotiate with other people. If you
are absent then not only will you be affected, so will your negotiation partners.
You will also need to be prepared for your role plays because if you come
205
unprepared then not only will your performance be affected, so will the
performance ofyour negotiation partners.
Effort: In order to learn to be an effective negotiator you need to put in a lot of
effort and be prepared to be part of a negotiating team. Adult learners learn best
by role playing and participating in exercises. This is also your opportunity to
expenment with different negotiation strategies and styles.
4.
Participation: This is a discussion and participation class. You will be required
to participate fully in assigned role plays and also to give effective feedback to
fellow negotiators. 40% of your mark will be a participation mark.
5.
Written Assignments: You are required to do daily preparation for your role
plays and to provide your written preparation to your instructor each morning
Format of the preparation for role plays will be included in the Negotiation
Workbook. These daily role play preparation assignments will be 20% of your
mark.
6.
Final Exam: Your final exam will be a simulated negotiation which will occur on
Friday January 8, 2010. Students will be broken into negotiation teams of two
who will negotiate with another team of two. Role play will be provided for the
exam on Tuesday January 5 to allow for sufficient preparation time. The final
role play simulation is worth 40% ofyour mark.
GRADING
To summarize -grading will be based on class participation 40%, role play preparation
20% and final role play simulation 40%. Your grade will be based on what you have
learned in class as evidenced by your participation, written role play preparations and
the final role play and not on the outcome of the simulated negotiations.
Contact
Please feel free to contact us at any time during or prior to the course if you have anv
questions.
Elaine Seifert, Q.C.
eseifert@dispute-resolution.ca
403 410 3806
J
Laurie McMurchie Q.C.
ImcmurchiefSdispute-resolutinn c,*
403 410 3801
206
Block Week Courses in Dispute Resolution and Trial Advocacy:
Practical Skills TrainingTaught by Practicing Legal Professionals
The University of Calgary Faculty of Law provides students with an excellent,
professional education that prepares them to practice lawin both traditional and non-
traditional settings. In order to ensure our graduates have the expertise and knowledge to
work in increasingly complex corporate and legal environments, we have a
comprehensive skills program.
The highlight of our skills program is the Block Week program offered to our
students in each year of study. The Block Week is the first week ofJanuary, the week
before the Winter Term starts. This is a unique program; the University of Calgary has
the only law school in Canada to dedicate a week during the academic year to practical
skills, taught by practicing lawyers, judges and criminal justice professionals.
First and second year students are taught how to resolve conflicts before going to
court in Law 411 (Dispute Resolution I) and Law 681.18 (Dispute Resolution II). In
Dispute Resolution I, students get an introduction to dispute resolution, including conflict
analysis, fact-finding through client interviewing, an overview of dispute resolution
processes, client-centered client counselling, and ethical issues. Dispute Resolution II is
an intensive course that explores the wide variety of methods for resolving disputes,
including negotiation, mediation, arbitration, collaborative proactive and court-assisted
dispute resolution processes such asneutral evaluation, judicialdispute resolution
conferences, and pretrial conferences. The course will focus on negotiation, as it is the
cornerstone for most alternative dispute resolution processes, and it culminates with a
simulated negotiation.
As it is not always possible to resolve conflicts before trial, third-year students are
taught how to prepare and present a case at trial in Law 639 (Trial Advocacy). The
course encourages the students to learnby doing all the skills necessary to argue a trial.
Students have a chance to practice examining and cross-examining witnesses, entering
evidence, impeaching witnesses, and presenting opening and closingarguments.
Members of the Calgary Police Service join the students to act as professional police
witnesses. Judges and practicing lawyers teach the course. The instructors are joined each
year by an outstanding advocate who is the Milvain Chair in Advocacy, sponsored by the
Calgary Bar Association. MonaT. Duckett, Q.C, was this year's Milvain Chair. The
Trial Advocacy course culminates with a full civil trial, criminal trial, or administrative
hearing at the Calgary Courts Centre.
Special thank you to all those who helped instruct and coach during Block Week:
Charlene Anderson, Robert Armstrong, Constable Tanya Bagnell, The Honourable Judge
P.B. Barley, Michael Bates, Gary Befus, Bina Border, The Honourable Judge A.J.
Brown, J. Paul Bninnen, Deni Cashin, Ryan Claxton, Katie Clayton, Mary Comeau, Peter
A. Crisfield, Rhoda Dobler, Mona T. Duckett, Q.C, Gregory Dunn, Sean E.D. Fairhurst,
James Floyd, Eleanor Funk, Wayne D. Gillis, Laurie A. Goldbach, Constable Cam
Gogol, Shannon Hayes, Chareles Hotzel, Constable Travis Juska, Constable Dave
Keagan, Susan Kennedy, Constable JeffKlinger, Dennis Langen, Elise Lavigne, James
M. Lutz, Constable Murray Maclver, The Honourable Justice A.D. Macleod, Adam May,
Ken McCaffrey, Jordan McJannet, Laurie McMurchie, The Honourable J. Major, Karen
B. Molle, Susan Mulligan, Brian Mustard, Molly Naber-Sykes, Constable Gary
207
Novokowsky, StaffSergeant Cliff O'Brien, Constance O'Laughlin, Photini Papadatou,
Valerie Prather, Gavin Price, Gulu Punia, Gwen K. Randall, Janice Rea, Lloyd
Robertson, Stephen T. Robertson, Kim Ross, Bernard Roth, Elaine Seifert, Jennifer
Shaften, Sabri M. Shawa, Deborah Shennette, Gord Sterchi, Constable Mike
Sushelnitsky, Ann Tierney, Kathleen Wells, Constable Steve Weninger, Stephen Wojcik,
and Gordon Wong, Q.C
208
IUW*
LAW 649.40: LEGAL RESEARCH
2009-10
IQ«
COURSE OUTLINE
Kim Clarke
Class Times:
Monday 2:45-4:45
Classroom:
MFH 3360
Office:
Phone:
E-mail:
Room 2304 (in the library)
(403) 220-6702
kim.clarke@ucalgary.ca
Office Hours:
Wednesday 2:30-4:30
COURSE DESCRIPTION
Legal Research builds on the research skills you developed in Fundamental Legal Skills. The course provides
instruction in research methodology, citation, print and electronic legal resources, and covers both secondary and
primary legal materials. While the focus is on Canadian legal research, students will be introduced to both the U.S.
and U.K. legal systems and research methodology. The emphasis is on advanced legal research skills required for
successful legal practice.
REQUIRED READINGS
There are no required readings for this class.
REFERENCE TEXTS
There are many legal research texts available in the library. The most current editions can be found in either the
Reserve or Reference rooms, in the KF 240 - KF 250 call number range. Dictionaries and words and phrases are
located in the Reference Room, in the KF 156 call number range. The Canadian Guide to Uniform Legal Citation
("McGill Guide") can be found in both the Reserve and Reference rooms at KF245 .C28 2006.
CLASS STRUCTURE
Each two hour class will becomprised of anhour long lecture followed by anin-class exercise that will allow students
to apply the skills being discussed in class. The in-class exercise is due at the end of each class.
Attendance ismandatorywith only three absences per term allowed. Each absence over the allowable limit will result
in a reduction of the student's final grade by one grade level. Illustration: If a student had a final grade of B+ but
missed five classes, the grade would be reduced two grade levels to B-.
EVALUATION
There are multiple evaluative tools being used in this class:1
1.
Three assignments
45%
2.
Take-home exam
45%
3.
In-class exercises
10%
1Students may elect to take a 100% take-home exam instead. This election must be made on or before October
19, when the first assignment is due. The 100% take-home exam will be more comprehensive than the 45%
exam.
1
209
SCHEDULE
The in-class exercises are due at the end of each class
Assignment 1 will be distributed on October 5 and due October 19
Assignment 2 will be distributed on October 19 and due November 2
Assignment 3 will be distributed on November 2 and due November 16
The take-home exam will be distributed on November 16 and due December 8
FEEDBACK
Feedback will be provided by way of written comments on the exercises, assignments and exam.
GRADING
The assignments and exam will be graded on a percentage basis, as follows:
97%-100%
93%-96%
90%-92%
87%-89%
83%-86%
80%-82%
77%-79%
73%-76%
70%-72%
67%-69%
63%-66%
62% and below
A+
A
AB+
B
BC+
C
CD+
D
F
The individual grades for each component will be multiplied by the percentage which the component bears to **-<
whole, and the results will then be added to determine the final course grade. Final grades will be assigned on
following grade point conversion scale:
A+
A
AB+
B
BC+
C
CD+
D
F
4.01-4.30
3.85-4.00
3.50-3.84
3.15-3.49
2.85-3.14
2.50-2.84
2.15-2.49
1.85-2.14
1.50-1.84
1.15-1.49
0.50-1.14
0.00-0.49
Note: A final grade of A+ carries a value of 4.0 for purposes of your GPA.
LATE PENALTY
The assignments and exam must be turned in on time. Per the Faculty Regulations, the penalty for late
assignments/exam is a reduction inthe grade on the assignment or exam by one band on the grade scale for any day
or part thereof that the assignment/exam is late. Illustrations: If an initial grade of 93% was givento an assignment
that was turned inthree days late, the grade on the assignmentwould drop from an Ato a B. If an initial grade of 93%
was givento an assignment that was turned in2 hourslate,the grade on the assignment would be dropped from an A
to a B+.
210
LAW 649.40: LEGAL RESEARCH
Winter 2010
COURSE OUTLINE
Kim Clarke
Office:
E-mail:
Office Hours:
MFH 2304 (in the library)
kim.clarke@ucalgary.ca
By appointment
COURSE DESCRIPTION
Legal Research builds on the research skills you developed in Fundamental Legal Skills. The course provides
instruction in research methodology, citation, print and electronic legal resources, and covers both secondary and
primary legal materials. While the focus is on Canadian legal research, students will be introduced to both the U.S.
and U.K. legal systems and research methodology. The emphasis is on advanced legal research skills required for
successful legal practice.
READINGS/REFERENCES
There are no required readings for this class. There are many legal research texts available in the library. The most
current editions can be found in either the Reserve or Reference rooms, in the KF 240 - KF 250 call number range.
Dictionaries and words and phrases are located in the Reference Room, in the KF 156 call number range. The
Canadian Guide to Uniform Legal Citation ("McGill Guide") can be found in both the Reserve and Reference rooms at
KF245 .C28 2006.
CLASS STRUCTURE
Each two hour class will be comprised of an hour long lecture followed by an in-class exercise that will allow students
to apply the skills being discussed in class. The in-class exercise is due at the end of each class.
Attendance is mandatory with only three absences per term allowed. Each absence over the allowable limit will result
in a reduction of the student's final grade by one grade level. Illustration: If a student had a final grade of B+ but
missed five classes, the grade would be reduced two grade levels to B-.
EVALUATION
There are multiple evaluative tools being used in this class:1
1.
Two assignments (20% each)
40%
2.
Take-home exam
50%
3.
In-class exercises
10%
SCHEDULE
The in-class exercises are to be completed during class and are due at the end of that class. The exercises cannot be
"made up" if a class is missed.
1Students may elect totake a 100% take-home exam instead. This election must be made on or before February
22, when the first assignment is due. The 100% take-home exam will be more comprehensive than the 50%
exam.
1
211
Assignment 1 will be distributed on February 8 and due on February 22.
Assignment 2 will be distributed on March 8 and due on March 22.
The take-home exam will be distributed on March 15 and due on April 13.
FEEDBACK
Feedback will be provided by way of written comments. An in-person meeting may also be scheduled at the student's
request.
GRADING
The assignments and exam \a
97%-100%
93%-96%
90%-92%
87%-89%
83%-86%
80%-82%
A+
A
AB+
B
B-
77%-79%
73%-76%
70%-72%
67%-69%
63%-66%
62% and below
C+
C
CD+
D
F
The individual grades for each component will be multiplied by the percentage which the component bears to the
whole, and the results will then be added to determine the final course grade. Final grades will be assigned on the
following grade point conversion scale:
A+
A
AB+
B
B-
4.01-4.30
3.85-4.00
3.50-3.84
3.15-3.49
2.85-3.14
2.50-2.84
C+
C
CD+
D
2.15-2.49
1.85-2.14
1.50-1.84
1.15-1.49
0.50-1.14
0.00-0.49
F
Note: A final grade of A+ carries a value of 4.0 for purposes of your GPA.
LATE PENALTY
The assignments and exam must be turned in on time. Per the Faculty Regulations, the penalty for late
assignments/exam is a reduction in the grade on the assignment or exam by one band on the grade scale for any day
or part thereof that the assignment/exam is late. Illustrations: Ifan initialgrade of 93% was given to an assignment
that was turned in three days late, the grade on the assignment would drop from an A to a B. Ifan initialgrade of 93%
was given to an assignment that was turned in 2 hours late, the grade on the assignment would be dropped from an A
to a B+.
212
1/lWbll
••'
The University of Calgary Faculty ofLaw
Advocacy: The Art ofPersuasion
Instructors9 Manual
Entry Code:
213
Contents
PAGE
WORKSHOP OUTLINE FOR TEAM LEADERS & GUEST INSTRUCTORS
WORKSHOP OUTLINE FOR PARTICIPANTS
STUDENT GROUPS
10
SEQUENCE OF STUDY
11
WITNESS ROLE ASSIGNMENTS
25
DEMONSTRATION SCHEDULE
28
214
Workshop Outline for Team Leaders & Guest Instructors
1.
PREPARATION
Please familiarize yourself with all of the problems assigned for each of the days you are attending.
Ifany of the problems are based on the Michelor Boltonfiles, you will need to familiarize yourself with
these files. Please be sure to read the Introduction in the Materials.
DEMONSTRATION SESSIONS
PLEASE CONSULT THE DEMONSTRATION SCHEDULE AND PREPARE YOUR ASSIGNMENTS.
The demonstrations are designed to educate and assist the students. They are scheduled in such
a way that the demonstrations will always be of the type of problem the students will have to
undertake in a subsequent period. Some of the demonstrations may appear very straightforward to
you as experienced counsel; however, they are very valuable for the students.
If you have been assigned a demonstrationinthis session, youwill be called upon usuallyinthe order
indicated in the Demonstration Schedule. Please try to keep all demonstrations serious and true to
life. I encourage you to speak to your opposing counsel beforehand to lay the ground rules and to
explain what you plan to do. Where the witness is your witness, you obviouslyneed to prepare him.
If you are a witness, please try to be as realistic as possible - this is not the time to try to bait the
examiningor cross-examining lawyers. Please stay within the assigned time limit. If necessary omit
portions of the examination (and explain this afterwards) to stay within the time limit.
If you are not involved ina demonstration, you may be called upon bythe team leaders to make some
comments on the demonstration, e.g. to make clear to the students what were the strengths of the
demonstration they have just seen and/or how you might have approached the problem differently.
SMALL GROUP MEETINGS
The General SequenceofStudy will tell you what room you are in, the groupthat you will be working
with and the problemsthat are to be performed. In this session, youand one other instructorwill meet
with one of the small groups of 12 students. In this session a guest instructormay be incharge if the
team leader accompanies the students to the video review room. Your task is to call on the students
to perform and then to offercritiques. Please limit the student performances to 5 minutes maximum
and your combined critique to 2 minutes maximum. Aim for a ratioof three quarter performance to
one quarter critique. During the session, you should get every student present upon her/his feet to
perform and to be critiqued.
Have several students attempt each problem, then you may move on to another problem. Not all
problems haveto be covered in each session. Choosestudentsto perform byreferenceto the group
list or you may simply ask for volunteers (the team leaders may give you a sheet indicating what
students should be called in what order).
Forevery problem assigned, there will be a student in the groupwho has been assigned to play the
witness role.
During the small group sessions, students whohave been video-taped in prior sessions will be videoreviewed by one of the team leaders, or, if the team leader wishes, the guest instructor. This may
215
mean that during the small groups, students may be called out (usually in pairs) to another room for
this review. They will typically be away about 20 minutes and then will return to your group.
4.
CRITIQUE
The programme emphasizes team teaching and learning by doing, coupled with critique. Each day
you attend you will be part of a teaching team of several practitioners. A word about critique. Please
remember—make your critiquespecific and keep itshort. Extensive note-taking (almost amounting
to a verbatim transcript of the questions asked by the student counsel) is essential to a specific and
helpful critique.
Experience has demonstrated over and over again that students do not learn from a critique that is
long, loose, and so general that its relation to the performance in class is hard to see. Your job is to
evaluate a particular student performance for the purpose of helping that student and others in the
class to do better. Be specific, particular, pointed,and concise. Please restrict your critique to one
advocacy point only. Give praise for those things that deserve it, but don't be content with a
solicitous pat on the head. Our students want to improve. You can help them with a critique that is
honest and straightforward about either a strength or a weakness of their performance. As to
weakness, don't stop with identifying it.Tell students how to correct the weaknesses—or show them.
Also, please avoid "war stories" (accounts of your own personal successes and failures) and
extended discussions of evidentiary, procedural and substantive law issues—even ifstudents seem
to desire it. Save these discussions for the coffee break and lunch. The real core of the programme
is extensive and repeated student performance and specific, constructive criticism of their
performance. Please feel free to give a brief demonstration during critique ifyou think this will help
the student.
The formula for an effective critique is:
• Headline
• Playback
• Rationale
• Prescription (or come back to headline)
Creation Sequence for Critique
• Find Playback - what the student did
• Create Prescription - how to fix it
• Articulate Rationale - why fix it
• Formulate Headline - advocacy technique - don't use the word good - use effective or
helpful
An effective critique is:
• at the student's level
• 1 minute long maximum
• on one point the student can fix
• one that other students will benefit from
Other considerations are:
• less is more - limit it to one point
• model the headline
• what would you do differently? how would you do it differently?
216
•»
•
When composing your critique, please refer to Sheila Block's notes in Section 9 of the Workshop
Outline for Participants.
Coffee
This is a good time for discussions with the students which could not be covered in class.
5.
POLICE PROBLEM - Thursday, January 6,2011
This year we will focus on the R. v. Thompson problem (problem 1) and will be joined Thursday
afternoon by at least eight Calgary Police Service constables.
The constables are very interested in receiving feedback from you as this is also a learning
experience for them. Therefore, each team leader is asked to spend a few minutes at the end of the
last session with the constables. I too am very interested to know whether you and your students
found this to be a valuable exercise so please let me know your thoughts.
6.
MISCELLANEOUS
Ifyou have any questions, please call me at:
Home
Cell
(403)229-4348
(403) 690-4348
or
E-mail me at <mnsykes@shaw.ca>
Thank you so much for supporting the course.
Molly Naber-Sykes
217
r
The University of Calgary Faculty ofLaw
Advocacy: The Art ofPersuasion
Students' Manual
218
Contents
PAGE
WORKSHOP OUTLINE FOR PARTICIPANTS
1
STUDENT GROUPS
7
SEQUENCE OF STUDY
8
WITNESS ROLE ASSIGNMENTS
22
FINAL TRIALS: SUGGESTED TIME GUIDELINES
25
RULES FOR FULL TRIALS AND HEARINGS
26
219
Evaluation and Attendance
Tne
course
will
be
evaluated
on
a
Pass/Marginal/Fail basis. Tbe benefit ox tbis
course is derived by performing and watcbing
otbers perform. Tberetore; attendance,
preparation and participation are compulsory. If
you are unable to attend a particular session,
please see Molly Naber-Sykes and advise ber of
tbis and of your reason for absence.
Tbe instructors bave taken time from work to
assist you. Your classmates bave prepared on tbe
understanding tbis is a group activity. Failure to
attend and participate in tbe Worksbop sessions
may result in a Marginal or Failing grade.
Dress for tbe daily class sessions is informal.
However, for tbe final trials, students sbould wear
appropriate court clotbes (suits, etc.)
220
4
Workshop Outline for Participants
INTRODUCTION
INTRODUCTION
1.
PREPARATION AND OVERVIEW
PREPARE BEFORE ARRIVING AT THE COURSE
PREPARE ALL OF YOUR ASSIGNMENTS BEFORE COMING TO THE COURSE.
PREPARING ALL OF YOUR ASSIGNMENTS BEFORE COMING TO THE COURSE IS THE
OPTIMUM COURSE OF ACTION. A consistent comment made by past students is that there
is not enough time to prepare the assignments during the course week. You will likely need
at least two solid days of preparation BEFORE the course.
AT THE LEAST, prepare the first day's exercises. Almost as soon as you arrive at the course, you
will be asked to get on your feet and perform various exercises as if you were at trial.
The major emphasis ofthis program is learning bydoing: continual performance coupled withcritique.
You will be called upon several times each day to perform the role of counsel in the various assigned
problems. The specific problem assignments for each day are set out in the Sequence of Study.
All drills are based on well known facts so it is only necessary to read the assigned textbook chapters
to prepare for them.
From the Sequence of Study you can determine exactly what your performance assignments will be
for each day of the course. Please also review the witness schedule. If you have been chosen to
perform the witness role for a problem, prepare yourself to be examined and cross-examined as that
witness. It is not necessary for you to prepare to perform this problem as counsel.
EVENINGS DURING THE COURSE
You will need your evenings during the course to prepare or refine your assignments. Ifyou did not
do some preparation before the course, you will find that you are very pressed for time.
TRIAL OR HEARING
The course culminates witha trial or administrative hearing which will consist of opening statements,
putting inoral evidence (byexamination-in-chief and cross-examination), entering exhibits and closing
statements. The trial and hearing materials are drawn from three case files - R. v. Bolton, Michel v.
Canless Housing Corporation and Mayan EnergyCompany Well LicenceApplication.
2.
MATERIAL
The basic course materials are:
1.
The materials, Materials for Intensive Advocacy: Problems and Case Files. Please be sure
to familiarize yourself with the Michel and Bolton files.
221
2.
3.
The textbook, Stuesser, An Advocacy Primer, Third Edition. You will find it invaluable to read
those sections of the text assigned for each day BEFORE the beginning of that day.
STUDENT GROUPS
For the course, you will be divided into eight groups equal in size. In the Materials, you will find a
Group List which indicates your small group. Except for the demonstration sessions and the full trial,
you will be working exclusively with your group.
For some problems, there are two sides or roles to be played, e.g. counsel for the plaintiff or Crown
and counsel for the defendant. Which role you are to prepare to play is determined by an "A" and, "B"
designation system. Everyone in the course has been designated either as an "A" or a "B". See the
Group List to see what your designation is: this designation does not change during the course. By
referring to the Sequence of Study you can determine your role for each assigned problem.
4.
TEACHING FACULTY
The teaching faculty for the program consists of two groups — the team leaders and guest faculty.
MollyNaber-Sykes is in charge of the course. She will be present throughout the program and will be
responsible for directing the teaching and organizing the final trials.
5.
SCHEDULE
The schedule breaks down into two parts: the five teaching days and the day of full trials. The
schedule is spelled out in great detail in the Sequence of Study.
SMALL GROUP MEETINGS
The use of small group meetings for much of the day makes it possible for every student to have an
opportunity to perform as counsel several times each day. During these small group meetings, you
will either be performing or seeing yourself on video-tape. Your performances will be critiqued bythe
teaching staff. Each group has been assigned a video review room. Ifyour performance was video
taped then during the subsequent session you will be called out of your small group to be videoreviewed by one of your teaching team members. Each small group session will be presided over by
a team leader, or by guest faculty, or both.
DEMONSTRATION SESSIONS
Each day except Friday there will be several demonstration sessions. During these sessions the
faculty will perform demonstrations which will be followed by discussions and comments on the
performance and brief lectures regarding the type of task demonstrated.
The demonstrations each day will deal with those aspects of advocacy that you will be concerned with
later that day or the following day. To maximize the benefit of these demonstrations, familiarize
yourself with the demonstration problem, before the demonstration. Think through how you would
carry out the task being performed by the faculty.
6.
STUDENTS AS WITNESSES
Most of the class exercises require witnesses. Check the Witness Assignment Sheet to see ifyou
have been assigned a witness role.
222
If you have been assigned a witness role:
1.
Be prepared — know the facts cold.
2.
Get into the role of the witness.
3.
Be real.
4.
It is not necessary to prepare to be counsel for this problem.
Acting as a witness provides a valuable learning experience: it lets you feel how a witness feels in the
box and heightens your appreciation of the adequacy or inadequacy of counsel's questioning.
We have not identified witnesses for problems 10 through 15. For these problems which involve the
introduction of exhibits, the student introducing the exhibit must prepare the witness or witnesses
(which can be played by one person) he/she proposes to call. Arrange with a member of your small
group to play the witness role or roles.
7.
CLASS PERFORMANCE
Each day you may be called upon to perform each and every assigned problem, in many cases, there
is not time for a student to perform the entire assignment. Still, you should prepare a complete
assignment. You may be asked to pick up the assignment from the point the last student left off. The
performing students should be prepared to make objections where appropriate.
Performance in class will be followed by critique. Be prepared to answer crisply (in not more than a
couple of minutes) each of the following questions: What were you trying to accomplish? Do you think
you succeeded? What additional objectives, if any, did you consider or reject? The critique may
suggest ideas that you have not considered in advance. The purpose is not to put you on the
defensive but to help you and others in the class to understand the strengths and weaknesses of the
performances and how to improve.
The program provides a unique format for developing your skills as an advocate and everything is
designed to that end. In-class time is devoted to performance and critique. Because class time is
limited and the focus of the course is on performance, there will be no discussion of substantive law,
procedural law and evidence, unless directly relevant to the trial task at hand. However, feel free to
pursue these discussions during coffee breaks and lunch.
8.
CALGARY POLICE SERVICE DAY: Thursday, January 6,2011
Thursday is Calgary Police Service Day. That morning we will be joined by Calgary Police Service
constables. You will perform problem 1,R.v. Thompson, with one or more of the constables as your
professional witness. The constables will be very well prepared. Please ensure you are well prepared
too.
9.
FINAL TRIALS
On the final day, Saturday, January 15,2011, full trials and hearings will be held and each of you will
have an opportunity to try a full case. These trials and hearings will take place at the Court of Queen's
Bench, Calgary Courts Centre, 601 - 5th Street S.W., and will be presided over by experienced
lawyers.
As you know, you have a choice of two trials being the files used during the week, Michelv. Canless
Housing Corporation or R. v. Bolton or the administrative file, In the Matter of Mayan Energy
Company. The trials are conducted with co-counsel (i.e. two participants represent the Crown or
plaintiff and two the defence). The hearings are conducted with four counsel, one for each of the
parties appearing before the board. I will attempt, as far as is reasonably practicable, to assign you
to the case which you choose.
223
7
You will need to arrange for witnesses at the trial (family, friends, neighbours...).
We encourage you to conduct your case before a jury but you must find the members of the jury.
Ideally, you should choose individuals who have no legal background, (i.e. don't ask law students or
lawyers to act as jurors). We strongly encourage juries because it is invaluable experience and
provides insightful lay feedback. You need not have a full jury (6 civil, 12 criminal).
The dress is business attire for the trials and hearings.
224
10
Sequence ofStudy
MONDAY, JANUARY 3, 2011
DRILLS
EXAMINATION-IN-CHIEF
Group
Room
1
Room 2370
2
Room 3320
3
Room 3330
4
Room 3340
5
Room 3342
6
Room 3354
7
Room 3360
8
Room 3370
Team Leader
Guest Instructor
FLOATERS:
Problems Assigned:
Readings Assigned:
2, 3, 4, 5, 6, 7,
prepare these problems to present during small group
10,11,12,13& 15
be familiar with these problems to better understand and
learn from the faculty demonstrations
(in Text)
1.
Developing a Trial Plan
• Chapter 1
2.
A Trial Notebook
• Chapter 6
3.
The Running of a Civil Trial
• Chapter 7 and/or the Running of a Criminal Trial Chapter 8
4.
Examination-in-Chief
• Chapter 11
225
11
MONDAY, JANUARY 3
8:00 a.m. - 8:30 a.m.
FACULTY MEETING (Faculty Only)
Conference Room 4365
8:30 a.m. - 9:00 a.m.
OPENING CONVOCATION
Room 2370
9:00 a.m. - 9:30 a.m.
FACULTY DEMONSTRATIONS
Room 2370
• Open question drill
• Succinctness drill with succinct closing
• Examination-in-chief of Mama Bear
9:30 a.m.-10:45 a.m.
SMALL GROUPS
• Succinctness drill with succinct closing to introduce students and faculty
• Open question drill
• Headline drill to direct attention to a specific topic
Room
Group 1 -Room 2370
Group 2 -Room 3320
Group 3 -Room 3330
Group 4 -Room 3340
Group 5 -Room
Group 6 - Room
Group 7 - Room
Group 8 - Room
3342
3354 (CIRL Board Room)
3360
3370
Each group will be in this room for all its small group sessions on Monday and each day thereafter. Groups
1-3 will video review in Room 3365 and Groups 4-6 will video review in Room 3385 and Groups 7 & 8 will
video review in room 4370 each day. We will not videotape this first small group session.
10:45 a.m. -11:00 a.m.
COFFEE BREAK
11:00 a.m.-12:00 p.m.
SMALL GROUPS
• Problem 2
• Problem 3
12:00-1:00p.m
LUNCH
226
12
1:00 p.m.- 1:45 p.m.
FACULTY DEMONSTRATIONS
Room 2370
Examination-in-Chief (without introducing documents)
Justice Mclntyre Presiding
• Problem 4 - Lee Michel (Michel)
• Problem 6 - Corporal Fortier (Bolton)
Theme and Theory Discussion
1:45 p.m. - 3:00 p.m.
SMALL GROUPS
Examination-in-Chief Without Documents
Video Review
Group 1 - Room 3365
Group 4 - Room 3385
Group 7 - Room 4370
• Problem 4 - Lee Michel (Michel)
• Problems - NoelOppenheimer(Michel)
The As prepare problem 4 and the Bs prepare problem 5.
3:00 p.m. - 3:15 p.m.
COFFEE
3:15 p.m.-4:15 p.m.
SMALL GROUPS
Examination-in-Chief Without Documents
Video Review
Group 2 - Room 3365
Group 5 - Room 3385
Group 8 - Room 4370
• Problem 6 - Corporal Fortier (Bolton)
• Problem 7 - Leslie Vandergraaf (Bolton)
As prepare problem 6 and Bs prepare problem 7.
4:15 p.m.-5:15 p.m.
FACULTY DEMONSTRATIONS
Room 2370
Exhibits and Demonstrative Evidence
Judge Barley Presiding
• Problem 10 - Bolton diagram
• Problem 11
•Problem 12
-
Bolton rifle
Bolton letter
•Problem 13 - Michel damage documents
• Problem 15 - Michel photograph
227
13
TUESDAY, JANUARY 4, 2011
EXAMINATION-IN-CHIEF WITH DOCUMENTS
CROSS-EXAMINATION
IMPEACHMENT
Group
Room
1
Room 2370
2
Room 3320
3
Room 3330
4
Room 3340
5
Room 3342
6
Room 3354
7
Room 3360
8
Room 3370
Team Leader
Guest Instructor
FLOATERS:
Problems Assigned:
10,11,12,13, 14,15, 16, 17,18,19, 20, 21 - prepare these problems to present
during small group
22 and 29 - be familiar with for faculty demonstration
Readings Assigned:
Text:
1.
Using Exhibits
Chapter 12
2.
Cross-Examination
Chapter 13
3.
The Ethics of Advocacy
Chapter 18
228
14
TUESDAY, JANUARY 4
8:00 a.m. - 8:30 a.m.
FACULTY MEETING (Faculty Only)
Conference Room 4365
8:30 a.m. -10:45 a.m.
SMALL GROUPS
Examination-in-Chief With Documents
Video Review
8:30 a.m. - 9:45 ap.m.
Group 3 - Room 3365
Group 6 - Room 3385
• Diagram drill
•Letter drill
• Business records drill
• Photograph drill
• Tangible object drill
• Problem 8 - Goldilocks invoice
Video Review
9:45 a.m.-10:45 a.m.
Group 1 - Room 3365
Group 4 - Room 3385
Group 7 - Room 4370
• Problem 9 - Goldilocks porridge bowl
• Problem 10 - Bolton diagram
• Problem 11 - Bolton photographs & rifle
• Problem 12
-
• Problem 13
•Problem 14
• Problem 15
- Michel damages documents
- Michel surveys
- Michel photograph
Bolton letter
The As will do problems 10,12,14. The Bs will do problems 11, 13,15.
10:45 a.m. -11:00 a.m.
COFFEE
11:00 a.m. -12:00 p.m.
FACULTY DEMONSTRATIONS
Room 2370
Cross-Examination Without Documents
Judge Lamoureux Presiding
• Problem 17 - Cross-Examination of Goldilocks
• Problem 18 - Cross-Examination of Lee Michel
• Problem 20 - Cross-Examination of Jamie Smith
12:00-1:00 p.m.
LUNCH
229
15
1:00 p.m. -3:00 p.m.
SMALL GROUPS
Cross-Examination Without Documents
Video Review
1:00 p.m. -2:00 p.m.
Group 2 - Room 3365
Group 5 - Room 3385
Group 8 - Room 4370
Closed Question Drill
Video Review
• Problem 19 - Cross-examination of Noel Oppenheimer
2:00 p.m. - 3:00 p.m.
Group 3 - Room 3365
Group 6 - Room 3385
As will do problem 18. Bs will do problem 19.
3:00 p.m.-3:15 p.m.
COFFEE
3:15 p.m.-4:15 p.m.
SMALL GROUPS
• Problem 16 - Cross-examination of Baby Bear
• Problem 17 - Cross-examination of Goldilocks
• Problem 18 - Cross-examination of Lee Michel
Cross-Examination Without Documents
Video Review
Group 1 - Room 3365
Group 4 - Room 3385
Group 7 - Room 4370
• Problem 20 - Cross-examination of Jamie Smith
• Problem 21 - Cross-examination of Leslie Vandergraaf
As will do problem 20. Bs will do problem 21.
4:15 p.m.-5:15 p.m.
FACULTY DEMONSTRATIONS
Room 2370
Cross-Examination with Documents
Judge Barley Presiding
• Problem 22 - Jamie Smith (Bolton)
Discussion of Two Different Goals of an Impeachment
• Problem 29 - Jamie Smith (Bolton)
230
16
WEDNESDAY, JANUARY 5, 2011
IMPEACHMENT, RE-EXAMINATION
EXPERT WITNESSES
Group
Room
1
Room 2370
2
Room 3320
3
Room 3330
4
Room 3340
5
Room 3342
6
Room 3354
7
Room 3360
8
Room 3370
Team Leader
Guest Instructor
FLOATERS:
Problems Assigned:
22, 23, 24,25, 26, 27,28, 29, 30, 31 - prepare to present during small group
1 - be familiar with for faculty demonstrations
Readings Assigned:
Text:
1.
Impeachment
Chapter 14
Objections at Trial
Chapter 15
3.
Expert Witnesses
Chapter 16 - pp. 356-366
4
Re-examination
Chapter 11, pp. 212-213
231
17
WEDNESDAY, JANUARY 5
8:00 a.m. - 8:30 a.m.
Conference Room 4365
FACULTY MEETING (Faculty only)
8:30 a.m. - 9:45 a.m.
SMALL GROUPS
Video Review
8:30 a.m. - 9:45 a.m.
Cross-examination With Documents
Group 2 - Room 3365
Group 5 - Room 3385
Group 8 - Room 4370
• Problem 22 - Jamie Smith (Bolton)
• Problem 23 - Daniel Chan (Bolton)
• Problem 24 -
The Internet
As prepare problem 22, Bs prepare problem 23. All students prepare problem 24.
9:45 a.m.-10:45 a.m.
Impeachment
Video Review
• Problem 25 - Goldilocks impeachment
• Problem 26 - Papa Bear impeachment
• Problem 27 - Lee Michel impeachment
9:45 a.m.-10:45 a.m.
Group 3 - Room 3365
Group 6 - Room 3385
All students prepare 25 and 26. As and Bs prepare 27 as directed in the problem.
10:45 a.m.-11-00 a.m.
COFFEE
11:00 a.m. -12:00 p.m.
FACULTY DEMONSTRATIONS
Room 2370
Justice Mclntyre Presiding
Re-examination
Purpose and Limits of Re-examination
Re-examination of Lee Michel
Re-examination of Jamie Smith after Impeachment in problem 29
Objections
etiquette
common objections
objections demonstrated
Chief, Cross and Re-exam Lee Michel
12:00 p.m.-1:00 p.m.
LUNCH
232
18
1:00 p.m.-2:15 p.m.
SMALL GROUPS
Impeachment and Objections
Video Review
Group 1 - Room 3365
Group 4 - Room 3385
Group 7 - Room 4370
• Problem 28 - Primsleur (Michel
• Problem 29 - Jamie Smith (Bolton)
Prepare as directed in the problems.
Objection drills
2:15 p.m. - 3:30 p.m.
FACULTY DEMONSTRATIONS
Room 2370
• Judge Ogle Presiding
Professional and Expert Witnesses
Proper Use of Notes
Examination, Cross-Examination and Re-examination of Constable - Problem 1
Dr. Carmen Esposito (Bolton)
3:30 p.m. - 3:45 p.m.
3:45 p.m.-5:15 p.m.
j COFFEE
SMALL GROUPS
Expert Witnesses
Video Review
Group 2 - Room 3365
Group 5 - Room 3385
Group 8 - Room 4370
• Qualifyingan expert drill
• Problem 30 - Dr. Carmen Esposito
• Problem 31 - Shoelace
All students prepare problems 30 and 31.
5:15 p.m.
Lounge - Room 4330
INFORMAL DISCUSSION
233
19
THURSDAY, JANUARY 6
PROFESSIONAL WITNESSES, PUTTING IT ALL TOGETHER
Group
Room
1
Room 2370
2
Room 3320
3
Room 3330
4
Room 3340
5
Room 3342
6
Room 3354
7
Room 3360
8
Room 3370
Team Leader
Guest Instructor
FLOATERS:
This morning will be devoted to the examination of professional witnesses. To accommodate, the normal
schedule will be varied slightly.
Problems Assigned: 1,32 and 33
Readings Assigned:
Text:
1.
Opening Addresses
Chapter 9
2.
Making Submissions
Chapter 5
3.
Closing Argument
Chapter 10
234
20
THURSDAY, JANUARY 6
8:00 a.m. - 8:30 a.m.
FACULTY MEETING (Faculty Only)
Conference Room 4365
8:30 a.m.-9:15 a.m.
FACULTY DEMONSTRATION
Room 2370
Judge Lamoureux Presiding
• Problem 32 - Frank Bolton
9:15 a.m.-11:00 a.m.
SMALL GROUPS
Video Review
9:15 a.m.-10:15 a.m.
Professional Witnesses
Group 3 -Room 3365
Group 6 -Room 3385
• Problem 1 - R. v. Thompson
10:15 a.m.-11:00 a.m.
Bs will examine the constable, As will cross-examine the constable.
Group 1 - Room 3365
Group 4 - Room 3385
Group 7 - Room 4370
11:00 a.m.-11:15 a.m.
COFFEE
11:15 a.m.-12:00 p.m.
FACULTY DEMONSTRATION
Room 2370
Judge Ogle Presiding
Civil Opening Statements and Closing Arguments
Michel opening before judge alone.
Michel closing arguments before judge alone.
235
21
12:00 p.m.-1:45 p.m.
MILVAIN LECTURE
Room 2370
1:45 p.m.-3:15 p.m.
SMALL GROUPS
Video Review
1:45 p.m.-2:30 p.m.
Group 2- Room 3365
Group 5 - Room 3385
Group 8 - Room 4370
• Problem 32 - Frank Bolton - As examine, re-examine - Bs cross-examine
• Problem 33 - Temler Stavros - Bs examine - As cross-examine
Evaluations
2:30 p.m.-3:15 p.m.
Group 3 - Room 3365
Group 6 - Room 3385
3:15 p.m.-3:30 p.m.
COFFEE
3:30 p.m.-4:15 p.m.
FACULTY DEMONSTRATION
Room 2370
Judge Ogle Presiding
Criminal Opening Statements and Closing Arguments
Bolton opening before judge and jury
Bolton closings before judge and jury
4:15 p.m.-5:00 p.m.
SMALL GROUPS
Closing Drill
5:00 p.m.
Informal Discussion
236
22
FRIDAY, JANUARY 7, 2011
OPENING STATEMENTS AND CLOSING ARGUMENTS
Group
Room
1
Room 2370
2
Room 3320
3
Room 3330
4
Room 3340
5
Room 3342
6
Room 3354
7
Room 3360
8
Room 3370
Team Leader
VIDEO REVIEW:
Prepare an opening statement or a closing argument according to your full trial assignment in the case you
will be doing next Saturday. You may prepare both if you wish. The instructor will try to give you time during
the morning to practise both.
237
23
FRIDAY, JANUARY 7
NOTE TO SHIRL:
CHANTAL NEEDS ALL VIDEO REVIEW ROOMS ON FRIDAY - MUST MAKE
DIFFERENT ARRANGEMENTS FOR VIDEO REVIEW FOR TA
9:00 a.m. -12:00 p.m.
SMALL GROUPS
Opening Statements
Video Review
9:00 a.m. - 9:45 a.m.
Closing Arguments
Group 1 - Room 3365
Group 4 - Room 3385
Group 7 - Room 4370
Discussion of trial preparation and presentation, theme and theory.
9:45 a.m.-10:30 a.m.
Group 2 - Room 3365
Group 5 - Room 3385
Group 8 - Room 4370
Please take a coffee break during this session at a time convenient for your
group.
10:30 a.m. -12:00 noon
Group 3 - Room 3365
Group 6 - Room 3385
SATURDAY, JANUARY 15,2011 - 9:00 A.M.
FULL TRIALS - COURT OF QUEEN'S BENCH
Calgary Courts Centre at 601 - 5 Street SW.
238
Block Week Courses in Dispute Resolution and Trial Advocacy:
Practical Skills Training Taught by Practicing Legal Professionals
The University of Calgary Faculty of Lawprovides studentswith an excellent,
professional education thatprepares them to practice law in both traditional and non-
traditional settings. In order to ensure ourgraduates have the expertise and knowledge to
work in increasingly complex corporate and legal environments, we have a
comprehensive skills program.
The highlight of ourskills program is the Block Week program offered to our
students in each year of study. The Block Week is the first week ofJanuary, the week
before the Winter Term starts. This is a unique program; the University of Calgary has
the only law school inCanada to dedicate a week during the academic year to practical
skills, taught bypracticing lawyers, judges and criminal justice professionals.
First and second year students are taught how to resolve conflicts before going to
court in Law 411 (Dispute Resolution I) and Law 681.18 (Dispute Resolution IT). In
Dispute Resolution I, students get an introduction to dispute resolution, including conflict
analysis, fact-finding through client interviewing, an overview of dispute resolution
processes, client-centered client counselling, and ethical issues. Dispute Resolution II is
an intensive course that explores the wide variety ofmethods for resolving disputes,
including negotiation, mediation, arbitration, collaborative proactive and court-assisted
dispute resolution processes such as neutral evaluation, judicial dispute resolution
conferences, and pretrial conferences. The course will focus on negotiation, as it is the
cornerstone for mostalternative dispute resolution processes, and it culminates with a
simulated negotiation.
As it is not always possible to resolve conflicts before trial, third-year students are
taught how toprepare and present a case at trial in Law 639 (Trial Advocacy). The
course encourages the students to learn by doing all the skills necessary to argue a trial.
Students have a chance to practice examining and cross-examining witnesses, entering
evidence, impeaching witnesses, and presenting opening and closing arguments.
Members of the Calgary Police Service join the students to act asprofessional police
witnesses. Judges and practicing lawyers teach the course. The instructors are joined each
year by an outstanding advocate who is the Milvain Chair inAdvocacy, sponsored by the
Calgary BarAssociation. Mona T. Duckett, Q.C., was this year's Milvain Chair. The
Trial Advocacy course culminates with a full civil trial, criminal trial, or administrative
hearing at the Calgary Courts Centre.
Special thank you to all those who helped instruct and coach during Block Week:
Charlene Anderson, Robert Armstrong, Constable Tanya Bagnell, The Honourable Judge
P.B. Barley, Michael Bates, Gary Befus, Bina Border, The Honourable Judge A.J.
Brown, J. Paul Brunnen, Deni Cashin, Ryan Claxton, Katie Clayton, Mary Comeau, Peter
A. Crisfield, Rhoda Dobler, Mona T. Duckett, Q.C., Gregory Dunn, Sean E.D. Fairhurst,
James Floyd, Eleanor Funk, Wayne D. Gillis, Laurie A. Goldbach, Constable Cam
Gogol, Shannon Hayes, Chareles Hotzel, Constable Travis Juska, Constable Dave
Keagan, Susan Kennedy, Constable JeffKlinger, Dennis Langen, Elise Lavigne, James
M. Lutz, Constable Murray Maclver, The Honourable Justice A.D. Macleod, Adam May,
Ken McCaffrey, Jordan McJannet, Laurie McMurchie, The Honourable J. Major, Karen
B. Molle, Susan Mulligan, Brian Mustard, Molly Naber-Sykes, Constable Gary
239
Novokowsky, Staff Sergeant Cliff O'Brien, Constance O'Laughlin, Photini Papadatou,
Valerie Prather, Gavin Price, Gulu Punia, Gwen K. Randall, Janice Rea, Lloyd
Robertson, Stephen T. Robertson, Kim Ross, Bernard Roth, Elaine Seifert, Jennifer
Shaften, Sabri M. Shawa, Deborah Shennette, Gord Sterchi, Constable Mike
Sushelnitsky, Ann Tierney, Kathleen Wells, Constable Steve Weninger, Stephen Wojcik,
and Gordon Wong, Q.C.
240
Thompson Rivers University
Pro Forma Law School Budget
Year One
Year Two
Year Three
Year Four
Revenue
Total Tuition Revenue
Fundraising for Operations
Application Fee
Total Revenue
$960,000
$2,206,000
$3,475,000
$4,172,000
$50,000
$75,000
$75,000
$75,000
$100,000
$75,000
$100,000
$75,000
$1,085,000
$2,356,000
$3,650,000
$4,347,000
$1,160,000
$1,875,000
$2,610,000
$2,820,000
$600,000
$950,000
$1,180,000
$1,335,000
$1,760,000
$2,825,000
$3,790,000
$4,155,000
-$675,000
-$469,000
-$140,000
$192,000
-$675,000
-$1,144,000
-$1,284,000
-$1,144,000
-$1,284,000
-$1,091,999
Expenditures
Salary and Benefits
Non Salary Expenditures
Total Expenditures
Excess of Revenue/Expenditure
Surplus/deficit carry forward
from previous year
Projected Cumulative Deficit
-$675,000
Thompson Rivers University Possibilities for the Third Floor Old Main For Discussion Purposes Only 243
POTENTIAL TRU OM LEVEL 3
PROJECT OVERVIEW
0914 BHA
PROJECT OVERVIEW
- POTENTIAL PLACEMENT OF THIRD FLOOR ON BLOCK A OF OLD MAIN BUILDING
- EXISTING BLOCK A HAS INFRASTRUCTURE TO ACCOMMODATE THIRD FLOOR
- FLOOR LOADS WOULD BE MOSTLY CARRIED BY EXISTING STRUCTURE
- ROOF OF THIRD LEVEL WOULD BE CARRIED BY NEW STRUCTURE OUTSIDE EXISTING WALLS OF BLOCK A
- ADDITIONAL BENEFIT OF NEW STRUCTURE WOULD BE TO PROVIDE SEISMIC BRACING TO LOWER LEVELS OF BLOCK A
- PROJECT HAS NUMEROUS LEED OPPORTUNITIES
- NOTE, NO ADDITIONAL SITE AREA REQUIRED
- THIRD LEVEL WOULD TAKE ADVANTAGE OF EXISTING BUILDING SERVICES/UTILITIES AND CREATE OPERATIONAL BENEFITS
- NOTE POTENTIAL FOR OUTSTANDING NORTH VIEWS
- COSTS COMPARABLE TO NEW, WITH BENEFIT OF SEISMIC UPGRADE OF LEVELS 1 AND 2
POTENTIAL SPACES THAT COULD BE ACCOMMODATED
- VARIETY OF INSTRUCTIONAL SPACES: CASE ROOMS, CLASSROOMS, SEMINAR ROOMS
- FACULTY AND DEPARTMENT OFFICES
- COMPUTER SPACE
- FLEX SPACE
POTENTIAL DESIGN ELEMENTS
- COLONNADE STRUCTURE SUPPORTING LEVEL 3 ROOF WOULD IMPROVE OLD MAIN VISUALLY
- LONG SPAN STRUCTURE CREATES PLANNING FLEXIBILITY
- POSSIBILITY TO OPTIMIZE NATURAL LIGHT AND WINDOWS
- POSSIBILITY OF HIGH VOLUMES FOR FUNCTIONALITY
- POSSIBILITY OF PHASING WINGS, OR SHELL AND FIT OUT.
- DOMINANT FORM TO RECAST IMAGE OF OLD MAIN BUILDING
- POSSIBILITY OF USING GLUED LAMINATED TIMBERS FOR LONG SPAN ROOF (CODE EQUIVALENCY REQ'D)
- BC WOOD FIRST COMMENT FOR INTERIOR PARTITIONS AND FINISHES.
- ELIMINATE OR GREATLY REDUCE SITE COSTS
PROJECT STATISTICS ANALYSIS FOR POTENTIAL LEVEL 3
NEW AREAS LEVEL 3
EAST SIDE
WEST SIDE
NORTH ELEVATOR/ACCESS/SERVICE AREA
HR OFFICE REALIGNMENT
NEW AREAS LEVEL 3
ENTRY & ELEVATOR
TOTAL NEW FLOOR AREA
AREA OF RENOVATION LEVEL 3
EXISTING HR AREA REALIGNMENT
EXISTING HR AREA NOT RENOVATED
ALTERATIONS FOR GENERAL USE SPACE
TOTAL FLOOR AREA ALTERATIONS
1,311
GROSS AREA SQ FT
GROSS AREA SQ M
16,515
20,858
1,072
1,072
1,534.9
1,938.5
99.6
99.6
500
46.5
40,017
3,719.1
726
0
1,538
67.5 0
0.0
142.9
2,264
210.4
244
POTENTIAL TRU OM LEVEL 3
PROJECT OVERVIEW
0914 BHA
POTENTIAL LEVEL 3 AREA OF MAGNITUDE BUDGET SUMMARY
** AREA OF MAGNITUDE ONLY - BASED ON VERY PRELIMINARY INFORMATION
** (THIS IS NOT AN ESTIMATE)
** PHASING INDICATED IS FOR DISCUSSION PURPOSES ONLY
ITEM
BUDGET -SHELL
**
BUDGET - FIT OUT
**
BUDGET - TOTAL
**
$100,000
$120,000
$0
$0
$0
$0
$4,686,006
$90,750
$0
$0
$5,727,340
$0
$138,420
$80,000
$100,000
$120,000
$0
$0
$10,413,346
$90,750
$138,420
$80,000
SUPPLEMENTARY BUILDING
STRUCTURAL FRAME -UPGRADE AND 3RD FLR SUPPORT
$950,000
$0
DESIGN CONTINGENCY
$401,372
$490,566
$0
$0
$0
$950,000
$0
$891,939
$0
$0
$6,348,128
$6,436,326
$12,784,454
$148,965
$151,035
$0
$1,500,000
$1,500,000
$952,219.20
$707,995.91
$1,660,215
$330,000
$180,000
$510,000
$40,000
$40,000
$80,000
$125,109
$144,246
$269,355
$7,944,421
$9,159,603
$17,104,024
OFFSITE COSTS
SITE DEVELOPMENT
SUPPLEMENTARY SITE
BUILDING
NEW
RENOS
RENOS
MISC ASSOCIATED RENOS
ESCALATION
SUBTOTAL CONSTRUCTION
DCC'S & PERMITS
EQUIPMENT
FEES
CONTINGENCY
OTHER
APPLICABLE GST EFFECT
TOTAL MAIN PROJECT **
APPROX EAST FIT OUT **
$4,121,821
APPROX WEST FITOUT **
$5,037,782
$300,000 TO BE VERIFIED
245
WEST ADDITION
EXISTING LEVEL 3
EAST ADDITION
NEW NORTH ACCESS &
EXPRESS ELEVATOR
OFFICES OR SEMINAR ROOMS ZONE
ADAPT EXISTING LEVEL 3 SPACE
(NORTH) TO GENERAL USE
E
EXIT
EXIT
DN
DN
E
UP
EXIT
ROOF
ROOF
DN
WEST ADDITION
INSTRUCTIONAL OR MULTI-PURPOSE USE.
POSSIBLE ADDITIONAL
CIRCULATION CORRIDOR
HR OFFICES: EXISTING NOT ALTERED
EAST ADDITION
INSTRUCTIONAL OR MULTI-PURPOSE USE.
HR OFFICES: INTERIOR RE-ALIGNMENT,
EXISTING BUILING
HR OFFICES: RE-ALIGNMENT,
SOUTH ADDITION
KEY:
OLD MAIN BUILDING
POTENTIAL LEVEL 3 DEVELOPMENT
CONCEPTUAL STUDY PLAN
December 2, 2009
SCALE 1 : 400
HATCHED AREA = EXISTING BUILDING
PROGRAM SPACE - NEW ADDITION
CIRCULATION - NEW ADDITION
SERVICE SPACE
DENOTES HUMAN RESOURCES AREA
246
Notes regarding each approach:
Approach A – 3 views – conceptual study shows the curved roof with the concrete
buttress close to the building.
Approach B – 1 view - conceptual study shows the curved roof with the concrete
buttress pulled away from the building to create a pathway
(we would still need to verify this with the Structural team)
Approach C – 3 views - conceptual study shows sloped roof with concrete buttress
close to the building
Approach D – 3 views - conceptual study shows a sloped roof with Concrete
Buttress split to create a pathway along the building.
(this approach still needs to be verified with the Structural team)
Approach E – 2 views – conceptual study shows a a green roof that has a part
sloped roof condition with Concrete buttress close to the building
Approach F – 3 Views - conceptual study shows Moment Frame with Curved Roof
Approach G – 3 Views - conceptual study shows Brace frame with Curved Roof
Regards,
Rubeena Saran
bingham + hill architects
201 1444 Alberni St.
Vancouver, BC, V6G 2Z4
Ph 604-688-8254
rsaran@bharch.ca
247
Task Description
Dur
Start
Finish
Sep
Oct
Nov
Dec
Jan
Feb
Mar
Apr
May
Jun
2011
Jul
Aug
Sep
Oct
Nov
Third floor add RFQ & design competition
Project Milestones
Award Project Management Contract
0
Award Prime Consultant Contract
0
07-Sep-10*
05-Jan-11
Award Stip Sum Construction Contract
0
20-May-11
Start Construction
0
Substantial Completion
0
06-Dec-11
Building shell complete & handover to TRU
0
20-Dec-11
02-Jun-11
Project Management
Confirm & document Project scope
5
07-Sep-10
13-Sep-10
Attend project meetings incl.. Steering/User Committee - ongoing throug
323
07-Sep-10
19-Dec-11
RFQ for Prime Consultant & shortlist
25
14-Sep-10
19-Oct-10
Prepare Project Implementation Plan
10
20-Oct-10
02-Nov-10
Project reporting - ongoing throughout
283
20-Oct-10
05-Dec-11
Design competition for short listed proponents, review & award
50
20-Oct-10
05-Jan-11
Hold risk workshop and prepare Risk Management Plan
2
20-Jan-11
21-Jan-11
Value Engineering review
2
15-Feb-11
16-Feb-11
Receive & handover to Owner close out documents - O&M manuals, as-b
15
08-Nov-11
29-Nov-11
Approvals & Permits
Conceptual Design - Owner review & sign off
2
20-Jan-11
21-Jan-11
Development Permit - submission & obtain
30
17-Feb-11
30-Mar-11
Schematic design - Owner review & sign off
3
17-Feb-11
21-Feb-11
Design Development - Owner review & sign off
5
31-Mar-11
07-Apr-11
Building permit - submission & obtain
30
30-May-11
11-Jul-11
Finalize Conceptual Design
10
06-Jan-11
19-Jan-11
Schematic design
20
20-Jan-11
16-Feb-11
Schematic Design cost check
5
10-Feb-11
16-Feb-11
Design Development
30
17-Feb-11
30-Mar-11
Confirm LEED requirements
2
03-Mar-11
04-Mar-11
Design Development cost check
5
24-Mar-11
30-Mar-11
Construction Documents
40
31-Mar-11
27-May-11
Pretender cost estimate
5
06-May-11
16-May-11
35
31-Mar-11
20-May-11
Design Phases
Procurement
Stipulated Sum Contract - prepare, tender period, evaluate & award
Construction
Construction
130
02-Jun-11
05-Dec-11
Substantial completion review & deficiency work completion
20
22-Nov-11
19-Dec-11
Commissioning
15
29-Nov-11
19-Dec-11
Thompson Rivers University RFP No: 2010_0036
Project Management Services for Old Main - Third Floor Addition
Preliminary Project Schedule
248
Dec
12
an
i
APPENDIX C-5
Thompson Rivers University
Correspondence
September 16, 2010
BY EMAIL
September 16, 2010
Chris Axworthy, Q.C.
Founding Dean of Law, Faculty of Law
Thompson Rivers University
900 McGill Road, PO Box 3010
Kamloops, BC V2C 5N3
RE :
Thompson Rivers University Proposal for a Faculty of Law
Dear Mr. Axworthy,
Thank you for providing the additional documentation about Thompson Rivers
University’s (“TRU”) law school proposal to the Ad Hoc Committee on the Approval of
New Canadian Law Degree Programs. The committee met by conference call on
September 15, 2010 to discuss the submission.
The committee has identified one outstanding item of substantial concern: Your proposal
is premised on being able to offer the University of Calgary law school curriculum. We
have now been able to review your license agreement and note that the agreement
makes provision for revocation of the license by the University of Calgary under
paragraphs 20 and 26. Should this occur, TRU would no longer be able to offer the
University of Calgary's curriculum to its law students. Could you please describe your
contingency plans should this occur?
Once we receive your response, the committee will finalize its deliberations. If you have
any questions, please do not hesitate to contact me or Deborah Wolfe.
Sincerely,
Ronald J. MacDonald, Q.C., Chair
Ad Hoc Committee on the Approval of New Canadian Law Degree Programs
c.c.
John Sparks, General Counsel
Thompson Rivers University
Mr. Al Lucas, Q.C., Dean of Law
University of Calgary
i
APPENDIX C-6
Thompson Rivers University
Second Supplementary Submission
September 24, 2010
i
APPENDIX C-7
Thompson Rivers University
University of Calgary
Licence Agreement
May 31, 2010
LICENCE AGREEMENT
THIS AGREEMENT datedfor reference the 1st dayof February, 2010(the"Reference Date")
BETWEEN:
THOMPSON RIVERS UNIVERSITY,having its principal address at 900 McGill Road,
Kamloops, British Columbia, Canada V2C 5N3
("TRU")
AND:
UNIVERSITY OF CALGARY, having itsprincipal address at 2500 University Drive
NW, Calgary, Alberta, Canada T2N 1N4
("UofC")
WITNESS THAT:
A.
B.
TRU wishes to start and operate a law school with the assistance of the U of C Faculty of Law;
and
'
U of C wishes to assist TRU in starting and operating a law school in Kamloops, British
Columbia.
NOW THEREFORE in consideration ofthe mutual promises and covenants herein contained, the parties
hereby covenant and agree as follows:
General Terms and Conditions
Definitions
1.
Unless the context requires otherwise, the following terms shall have the meanings set out below
when used in this Agreement:
a.
'Taculty" has the same meaning as in the Post Secondary Learning Act, S.A. 2003,
b.
"Intellectual Property Assets" means the name University of Calgary, the acronym
c. P-19.5.
UofC, the University of Calgary Logo, Crest, Coat of Arms and Motto, the U of C
Curriculum and the U of C Programme.
c.
^'Intellectual Property Rights" means any and all of the following in any and all legal
jurisdictions around the world: (i) patents, patent applications, and patent renewals; (ii)
trademarks and copyrights, and registrations and applications for registration thereof; (iii)
trade secrets and confidential business information; (iv) other proprietary rights relating
to any of the foregoing including, without limitation, moral rights and associated
goodwill and remedies against infringements thereof and rights of protection of an
interest therein under the laws of all jurisdictions^
~.
4027608.1
d-
"u ofCCurriculum" means the curriculum used by UofCFaculty ofLaw to attain its
educational objectives as amended from time to time, including course descriptions,
course outlines, and course syllabi that are provided to TRU or a member of its Faculty of
Law by a member of the U of C Faculty of Law where the U of C Faculty member or the
University of Calgary has a right to provide them.
e.
"U of C Programme" means the U of C Faculty of Law undergraduate law programme
/ as implemented in accordance with the faculty regulations, programme objectives,
standards of competence, course requirements and U of C Curriculum.
Programme & Curriculum Licence
2.
Licence: Upon and subject to the terms and conditions set'out in this Agreement, U of C hereby
grants to TRU, effective from the Reference Date hereof, unless terminated during the term the
following rights and licences:
a.
A perpetual, non-exclusive, non-sublicensable, non-assignable licence to reproduce and
use, the U of C Programme and U of C Curriculum solely for the purposes of this
Agreement. All rights not granted herein are reserved.
3.
Ownership: TRU acknowledges and agrees that U of C is the exclusive ownerof the Intellectual
Property Assets and of all Intellectual Property Rights in and to them.
4.
Modifications: Any modifications of the U of C Programme and U of C Curriculum for use as
the TRU undergraduate law programme and TRU Curriculum respectively shall be done only with
the prior written consent of the Provost of the U of C.
Fees and Expenses
5.
Payment: TRU shall pay to UofCa licence fee of: (i)
July 1, 2010; and
term of this Agreement.
6.
plus all applicable taxes on
plus all applicable taxes on July 1 each year for the remainder of the
Disbursements: TRU shall reimburse UofCfor all reasonable disbursements incurred by it in
performance of its obligations in this Agreement.
7.
Reimbursement of Disbursements: U of C shall submit invoices for disbursements and shall
attach the applicable receipts when these are reasonably available. TRU shall reimburse
disbursements within twenty business days after receipt by TRU ofthe invoices.
8. ,
tion and Assistance Fee: Beginning on February 1, 2010 TRU shall pay to Uof C
an
anniversary thereafter in the years 2011 to 2017, TRU shall pay to Uof C
the sum of
for cooperation, assistance and university overhead costs. On February 1,
2018 TRU shall pay to the Uof Cthe sum of
for cooperation, assistance and university
overhead costs.
9.
Late Charges: Uof Cmay charge interest of 1.5% per month or portion thereof for late payment
of anyamount owing underthis Agreement.
Degree & Programme
10.
Programme: TRU represents, warrants and covenants that:
a.
)
.
It shall operate the TRU Faculty of Law in accordance with regulations of the U of C
Faculty of Law, including without limitation the grading standards, academic status,
assignments, examinations, appeals ofgrades, petitions to the academic status committee,
and delegation, subject to section 4 herein.
4027608.1
It shall use the U of C Curriculum a,s the TRU Faculty of Law curriculum, subject to
section 4 herein.
11.
Degree: U of C acknowledges and agrees that:
a.
For the-term of this Agreement, TRU shall be entitled to annotate the transcripts of
students of the TRU Faculty of Law with the words "J.D. offered in collaboration with
the University of Calgary, Faculty of Law" or withother wording as agreed to in writing
by the parties to this Agreement and to hold itself out to others in the same manner.
Cooperation
12.
Cooperation and Assistance: U of C Faculty of Law shall provide reasonable assistance to the
TRU Faculty of Law to plan the operation ofand tooperate the TRU Faculty of Law programme
provided that assistance shall be with the consent of individual U of C Faculty members and TRU
shall cooperate with the UofC ina reasonable manner. Each person at the TRU Faculty of Law
may seek information and assistance with the person at the corresponding position at U of C
Faculty of Law.
13.
Nature of Relationship: Nothing contained in this Agreement shall be construed to create or
imply ajoint venture, partnership, principal-agent, or employment relationship between the parties
or between the parties and the employees of the other party. Except with the prior written
authorization ofthe other party, neither party nor its employees shall act or purport to act as the
legal agent ofthe other, or to bind or purport to bind either party to incur liability in any manner
whatsoever.
14.
No Right to Transfer: Nothing in this Agreement is intended to provide TRU students with a
right to transfer to or be admitted by the Uof Cand TRU shall be responsible for ensuring that
TRU students are so informed.
Quality Assurance
15.
TRU acknowledges that, in order to foster and preserve the reputation and goodwill ofthe UofC,
itis necessary for TRU to deliver the UofCCurriculum and the UofCProgramme in a manner
consistent with UofC's standards of academic quality. Therefore, TRU agrees to deliver the
TRU Programme, using the UofCCurriculum and the UofCProgramme in accordance with the
UofC's standards ofacademic quality, as established and used by the UofC, subject to section 4
herein.
16.
In using the licence granted by this Agreement, TRU agrees to comply with the Regulations of the
Faculty ofLaw, UofC, as amended from time to time and the Faculty ofLaw, UofCAdmissions
Policy, as amended from time to time. Uof Cagrees to advise TRU in writing of any change to
these applicablepolicies.
17.
18.
19.
20.
4027608.1
Dean: The initial Dean of the TRU Faculty of Law shall be selected by aCommittee consisting of
7persons appointed by TRU and 2persons appointed by the Dean of the Faculty of Law, Uof C.
Faculty: The initial faculty of the TRU Faculty of Law shall be selected by aCommittee to which
the Dean of the U, of CFaculty ofLaw may appoint up to two (2) persons at the Dean's option.
Faculty Council: The Provost of the Uof Cshall be entitled to appoint two (2) voting members to
theTRUFaculty of LawFaculty Council.
Inspection Right: The Provost ofthe Uof C, or the Provost's appointee, shall be entitled to
inspect the operations of the TRU Faculty ofLaw and to access and reproduce information about
its law program that is reasonably required. TRU shall cooperate in a reasonable manner with the
Provost of the U of C to provide such information and access when requested by the Provost,
U of C. Should the U of C be unable to inspect or should TRU have failed to comply with any
terms of this Agreement, U of C shall be entitled to terminate this Agreement in accordance with
section 26(b) provided that consent to such termination is given in writing by the Provost of the
U of C. In suchevent, TRUshall immediately cease using the Intellectual Property Assets.
l
Intellectual Property
21.
TRU expressly acknowledges that U of C is the owner of all Intellectual Property Rights in the
22.
TRUshallnot,eitherduring the termof this Agreement or thereafter, directly or indirectly, contest
or assist any thirdpartyto contest, U of C'sownership of the Intellectual Property Rights related to
Intellectual Property Assets.
the Intellectual Property Assets.
23.
( TRU shall notassign or license theIntellectual Property Assets.
24.
TRU shall not use the Intellectual Property Assets in any manner calculated to represent that it is
the owner of the Intellectual Property Assets. Neither during the term of this Agreement, nor at
any time after termination hereof, shall TRU, either directly or indirectly, dispute or contest the
validity or enforceability of the Intellectual Property Assets or the Intellectual Property Rights.
Any goodwill associated with the Intellectual Property Assets shall enure exclusively to the
benefit of the U of C.
25.
Neither this Agreement, nor the use by TRU of the Intellectual Property Assets shall in any way
give or be deemed to give TRU any Intellectual Property Rights in the Intellectual Property
Assets, except for the right to use the Intellectual Property Assets solely in connection with the
exploitationof TRU's rights under this Agreement.
Termination of Agreement
i.
26.
In addition to section 20 herein, andonlywith the written consent of theProvost of the U of C, the
U of C shall have the right to terminate this Agreement and the rights and licences granted
hereunder without prejudice toenforcement ofany other legal right or remedy, immediately upon
giving written notice of such termination upon the happening of any of the following events:
a.
If default shall be made in thedue and punctual payment of the Fees payable under this
Agreement, when and as same shall become due and payable, and such default shall
continue for a period often (10) days after written notice thereof has been given toTRU;
or
b.
If TRU shall breach any other of the terms orconditions of this Agreement or any other
agreement or undertaking entered into between U of C and TRU and such breach shall
continue for a period often (10) days after written notice thereof has been given toTRU.
Limitation of Liability
27.
The parties agree that their respective rights and obligations are limited to the express
undertakings made in this agreement, and that noterms, representations, conditions or warranties,
including any warranty or condition of merchantability, fitness for a particular purpose,
performance^ or durability, for any development, any item ofUofC's licensed hereunder, orfor
any third party prpduct, whether recommended by Uof Cor not, shall be implied between them.
4027608.1
28.
With the exception, of the indemnification set out herein, neither party nor their respective
affiliates, directors, officers or employees shall be liable to the other party for any economic,
commercial, special, consequential, incidental, exemplary or indirect damages, even if they have
been advised of the possibility of such loss, including without limitation, loss of revenue or
earnings, lost data, lost profits, or a failure to realize expected savings.
29.
With the exception of the indemnification set out herein, neither party's liability to the other party
in connection with this agreement, nor the liability of their respective affiliates, directors, officers
or employees, shall exceed the total amount paid by TRU to U of C for the services associated
with such liability.
30.
These limitations, exclusions and disclaimers shall apply whether an action, claim or demand
arises from a breach of warranty or condition, breach of contract, negligence, strict liability or any
other kind ofcivil liability connected with this agreement.
General
31.
Indemnity: TRU shall indemnify and save harmless UofCand its respective agents, independent
contractors, directors, governors, officers and employees from and against any and all damages,
losses, injuries, claims, demands, actions, liabilities, costs and expenses (including legal fees on
solicitor and own client, full indemnity basis) incurred or made against U of C arising, either
directly or indirectly, from any negligent or wrongful act(s) or omission(s) of TRU. U of C shall
indemnify and save harmless TRU and its respective agents, independent contractors, directors,
governors, officers and employees from and against any and all damages, losses, injuries, claims,
demands, actions, liabilities, costs and expenses (including legal fees on solicitor and own client,
full indemnity basis) incurred or made against TRU arising, either directly or indirecdy, from any
claim that TRU's use ofthe UofCCurriculum or the UofCProgramme violated rights held by
the claimants, provided however, that UofCs liability under this indemnity will not exceed the
cumulative amount ofthe Fees paid by TRU toUofC under this Agreement.
32.
33.
- ;
/
"
Term of Agreement: This Agreement shall be deemed to have come into force and effect as of
the Reference Date and continues in effect until June 30, 2018, unless U of C terminates the
Agreement in accordance with its termination provisions. This Agreement will also terminate in
the event that TRU isunable tosuccessfully commence operation ofa law school.
Enforcement: TRU acknowledges and agrees that damages may not be an adequate remedy to
compensate for any breach ofthe UofCintellectual property rights, and accordingly agrees that
in addition to any and all other remedies available, Uof Cshall each be entitled to obtain relief by
way ofa temporary orpermanent injunction to enforce such rights.
34.
Severability: Ifany one or more of the provisions of this Agreement shall for any reason be held
to be invalid, illegal, orunenforceable in any respect, any such provision shall be severable from
this Agreement, in whiqh event this Agreement shall be construed as ifsucli provision had never
been contained herein.
35.
Disputes: Members of the Uof CFaculty of Law and the TRU Faculty of Law shall work in good
faith to resolve any disputes that arise under this Agreement between an individual orindividuals
atthe UofCFaculty ofLaw and an individual orindividuals at TRU Faculty ofLaw. Where such
a dispute arises out of or in connection with this Agreement that cannot be resolved by these
persons, the following steps shall be followed. Step I: Within twenty (20) days ofthe date that the
individual becomes aware, or should reasonably have become aware, of the~ incident or
circumstances causing the dispute, the staff member shall contact the applicable Faculty
Association, which shall forthwith request to meet withthe other Faculty Association and seek to
resolve the matter. Step II: If settlement is not reached through the foregoing procedure, then
either Faculty Association may, within twenty (20) days of the meeting outlined in the preceding
Step, serve written notice upon the other party to the dispute to submit the dispute to arbitration.
^ 1
4027608.1
The arbitration procedures shall be governed by the arbitration provisions set forth in s. 24 of the
Collective Agreement between the Faculty Association of the U of C and the Governors of the
University of Calgary, mutatis mutandis.
36.
Notice: Any notices, reports or other communications required or permitted to be given under this
Agreement shall be in writing and shall be sufficient if delivered by hand or sent by Expresspost
certified mail, courier or facsimile addressed to the Dean, TRU Faculty of Law or the Provost,
U of C at their respective addresses shown on the first page of this Agreement, or to such other
address or individual as oneparty advises theother party in writing. Any such notices, reports, or
other communications shall be deemed to have been received by the party(ies) to whom they were
addressed upon delivery by hand, Expresspost certified mail, courier or facsimile (provided that
the receiveracknowledges receipt of the Noticein some fashion) when received.
37.
Survival: Any provision of this Agreement which expressly states that it is to continue in effect
after termination or performance of the Agreement or which by its nature would survive the
termination or performance of this Agreement, shall remain in full force after the performance of
this Agreement or its termination for any reason. The ownership clause and all TRU obligations
concerning fees and disbursements earned by U of C to the date of termination shall survive
termination.
38.
Assignment: Neither party may assign this Agreement or any of its rights or obligations
hereunder, without the other party's prior written consent which shall not be unreasonably
withheld or delayed.
39.
Whole Agreement/Modification: This Agreement is comprised of this document and any
attached Schedules. In the event of any conflict or discrepancy between this document and a
Schedule, theterms of this document shall govern unless the language in a Schedule indicates that
it is the specific intent of the parties to overrule or to supplement a particular provision of this
document. This Agreement supersedes all previous dealings, communications, understandings
and expectations of the parties and constitutes the whole agreement with respect tothe transactions
contemplated hereby, and there are no representations, warranties, conditions, or collateral
agreements between the parties with respect tosuch transactions except asexpressly setoutherein
andin theinstruments), if any, executed and delivered pursuant hereto.
40.
Amendments: No amendment, modification, supplement or other purported alteration of this
Agreement shall be binding upon a party unless in writing signed by them oron their behalf by a
duly authorized representative(s).
41.
4027608.1
Governing Law: [This Agreement shall begoverned by and interpreted inaccordance with the law
of Alberta and the law of Canada applicable therein, excluding rules of private international law
that leads to the application of the laws of anyother jurisdiction. The courts of Alberta shall have
the non-exclusive jurisdiction to hear any matter arising in connection with this Agreement.
Execution
42.
Counterparts: This Agreement may be executed in counterparts, or facsimile counterparts, each
of which when executed by either of the parties shall be deemed to be an original and such
counterparts shall together constitute one andthe same Agreement.
Each party represents and warrants that its respective signatory is duly authorized to execute this
Agreement on its behalf.
THOMPSON RIVERS UNIVERSITY
UNIVERSITY OF CALGARY
By:
ta-lU
Name: Dr. Uli Scheck
Name: Dr. Alan Harrison
Title: Provost & Vice-President (Academic)
Title: Provost & Vice-President (Academic)
Date: May 31, 2010
Date: May 31,2010
4027608.