The Canadian Legal System
1. The Canadian Legal System
Explain the term constitutional government, and show how it is achieved in Canada
The term constitutional government is means a government that is guided by the consitution, where the consitution is used to resolve issues relating to the government. In canada, this has been achieved through written components of consitution that include, the Consitution Act of 1867, the Canadian Charter of Rights and Freedoms and throgh relevant rulings by judges regarding constitutional law. These three documents offers a guideline and values that inform Canada’s government system.
Describe the difference between the civil law and common law systems
Civil law is form of private law that judges have to follow in ruling over cases before them. In this case, judges have to follow a civil code to decide a case. On the other hand, common law is judge-made law. This implies that common law is formed from the decision or ruling given by a judge on a certain legal issue. The ruling later forms a precedent that other judges deciding in similar cases can follow. The main difference between these two set of laws is that judges using civil law are not bound by past rulings as in common law.
Explain what is meant by the term “separation of powers” and describe how it is achieved in the Canadian system
The term of “ separation of powers” is used to decribe the various authority or powers that different levels of government hold. In canada, separation of power is achieved through the Consitution Act, 1867 that gives the different levels of governmnt different jurisdictions they can execise. For example, the federal government has a parliament that makes law, the provincial government has legislature powers of making law, territorial govenrment have limited self-control that is subject to federal control while municipal government have law making jurisdiction given by the provincial legislature.
Explain how power is divided between the Government of Canada and the provinces.
The consitution of canada underlines that the federal government has the jurisdiction to make criminal laws. The provinces have been given jurisdiction over property and civil rights and therefore they can make laws on these two issues. There are cases where the federal government and the provincial government share jurisdictions for example on health and envrionment. This is referred to as paramountcy, where the federal laws are paramount to those of the province to avoid conflicts on legislation.
Explain how the Canadian Charter of Rights and Freedoms acts to limit law-making powers in Canada
The canadian charter of Rights is a critical responsibility given to judges to determine whether a certain law is inline with the requiremnts of the canadian constitution. This chater is meant to use to judicial to ensure that the government acts in accordance to the values associated with the democractic state of Canada.
Show how each of the three branches of government in Canada become involved in law-making
The ligislative branch: this branch of government formulates law referred to as statute law (legislation). A good example being the Criminal code of canada. Legislative branch is at every level of government, starting from the federal government, provincial government, territorial and municipal all make or change statutes.
Judicial branch: the judicial creates law or the new ruling made by judges in certain legal issues that sets a precedent that has to be followed in future by other judges. Thereby becoming part of laws. This occurs because Canada uses common law.
The executive branch: this becomes involved in the legislative process since the federal government or provincial government has to approve the final step in creation of statute law.
Explain the doctrine of “the supremacy of parliament,” and give examples of its application
Simply put the doctrine of “the supremacy of parliament” means that parliament has the right to pass or revoke any law, and more so, no other person is recognized under the law of Canada to override or supersede the legislation passed by parliament. For example the parliament has passed several laws in Canada such as Tobacco Access Act.
Distinguish between common law and equity and explain how they interact in the Canadian judicial system.
Common law as already stated is judge-made law, meaning that are ruling made by judges on certain legal issues that are followed later by other judges on a similar issue. While equity is used to assist a deserving person get a fair ruling. The two laws intereact by applying equity in cases that common law seems to fail to offer fairness.
2. The Law of Torts
– Describe the objective of the law of torts.
The objective of tort law is to offer a way where compensation, normally in terms of damages may be paid for to those who suffers damages due to violation of contract. For example, if a person is injured in a motor vehicle accident, he may seek compensation through tort law.
– Explain how each individual tort is broken into constituent elements for purposes of analysis.
Tort law is divided into various elements underlined below:
Tresass to land: this entails wrongful interference with a person’s land property. For exampple, if a person parks on private land, he will be liable for trespass to land.
Deceit or fraud: this entails a false information passed that cause harm to a person. For instance a vendor may buy phone that does not have features attiributed to it by the seller. The seller would be liable to tort of fraud.
Negligence: this tort compensates a person who suffers damages or injuries becase of unreasonable action of another person.
Describe the objective test of the reasonable person, and explain why and how it is applied in the law of torts.
The objective of “the reasonable person” is to make a decision if the defendant’s actions are below or above the standard of a reasonable person. This is applied in Tort law to determine if the defendant acted in a manner that a reasonable person would have acted or not, if he acted beyond set standard of a reasonable person, then he will not be accused of negligent.
Distinguish between intentional torts and unintentional torts.
Intentional torts are harmful activities done by people purposely, while unitentional torts when a person unknowingly or through negligent does something that harms another person.
Explain how defences can be used by the defendant in a legal action to reduce or eliminate liability for commission of a tort.
the defendant can apply the Contributory negligence defence claiming that the plaintiff was partly responsible for the loss that occurred and commision should be aportion proportionally.
State the elements of various torts and demonstrate their application in the analysis of cases.
The four elements of torts are presence of responsbility, breach of duty, occurance of injury and breach of duty resultuung in injury. For example, if a drunk driver careless driving causes an accident, he will have breached his duty and caused injury therefore liable bsed on tort law.
Identify the three approaches a defendant can take to totally avoid liability for negligence when s/he has been asked for a professional opinion.
The professional apply the approch of not causing personal harm to the client and argue that his actions only cause monetary loss, which is not serious under tort law. The profession may argue also that the report was used by a third party that’s way negligence was cuaed. Lastly, profession may argue that he is not liable for the negligence.
Describe the defenses that may be available to the defendant when being sued even if all of the elements of the tort of negligence are proven to be present.
Contributory negligence: where a defendant claims that the plaintiff was partly responsible for the loss tht occurred and should therefore be liable to that extent. The second defense is the allegation that the plaintiff freely assumed the risk.
Explain when and how employers can be held to be vicariously liable for torts committed by their employees.
The employers may be held vicariously liable when an employee under him does a wrongful activity when performing his duties as required by the employer. For example, when an employer allows gender discrimination he will be liable for vicarious liability.
The Law of Contracts
Define a contract and explain the requirements for contract formation.
A contract is a intentional agrrement reached between two or more parties who share mutual intetrest. The contract need not be written on paper. For a contract to be formed, it has to be complete, meaning has to be certain, deliberate (both parties has to be willing to part of the contract), voluntary (the contract has to be freely reached and not involve any coercion or underhand moves).
Identify and describe the five categories of situations faced by the court in cases dealing with contracts, and show the consequences that flow in each category.
Business relationships: businespeople at time breach contracts they have formed. Where the re
Describe the different types of mistake that can occur at the time of contract formation and the effect they have on the enforceability of the contract.
There are two types of mistakes that can occur, these are legal mistake and common mistake. In legal mistake occurs when one party makes an error for instance when typing. For example quoting a price of car at $1,000 instead of $10,000. A common mistake occurs when two parties make similar errors.
Define duress and explain how the law treats contracts formed as a result of duress.
Duress happens when a person entering into a contract is put under undue pressure that forces him to consent to the contract unwillingly. There are three ways duress can occur, duress to the person, economic duress and duress to goods. The law holds that a contract formed under duress is invalid.
State the Parol Evidence Rule, identify the exceptions to it, and distinguish the situations that fall outside the rule.
As noted before, contracts can be made in three form, entirely oral, entirely written, or using both oroal and written. In cases where the contract is through a written agreement, it may result in parol evidence, whereby a court is requested to determine in accordance to the parties intentions, what a contract means. This will include “parol” or oral words that will refer to any form of evidence that is external to the written contract. The whole contract clauses are applied to make sure that parol evidence rule is used in the contract under discussion. The Parol Evidence rule stresses the purity of the written contract and implies that the parties ought, prior to agreeing to written agreement, make sure that provision of all terms are imperative to them. Where there is failure to this implies that the rule will be applied on the party that fails to ascertain its intepretation of the agreemnt without using evidence “not contained” in the contract.
However, are cases where the rule is not applicable, such cases include:
Where the contract made with the intention of being both in written and and oral. It only applies where the agreement is entirely written.
Where the promise to enforce the contract is contained in a different agreement that is oral. This rule will not be applicable.
Identify and describe the various ways in which contractual situations can be discharged.
Ways in which a contract can be discharged is through a serious breach of contract that amounts to a breach of condition of the contract. Secondly, where one party requests that the contract be discharged.
Explain the principles underlying the availability of the different remedies for breach of contract.
These principles holds that there are various breaches that can be committed and therefore different remedies should be availed to compensate the innocent party proportionally.
Identify and describe the different types of breach of contract and how the type of breach affects the remedies available to the innocent party.
Condition breach: this is where one of the conditions of the contract is breached, this is a serious breach and the innocent party has to right to sue for damages and deem the contract as ended.
Breach of warranty: This is less serious breach, and the innocent party can seek damages alone, the contract still stands.
Breach of Innominate terms: the innominate terms are neith condition nor warranties and therfore when breached, the court decides on how much the innocent party will be compensated.
Define and explain the availability of the remedy of quantum meruit.
quantum meruit, means a remedy sought to payment of the services or value offered. Usually it is meant to compensate contractual damages suffered. quantum meruit. is avaialbe when a contract is renounced by the principal.
Describe how the courts interpret and apply provisions in standard form contracts.
The courts view standard form contracts as normal contracts and therefore binding. However, where exlusion provisions have been used in the contract, the court cannot depend on such provisions to make a determination.
4. The Role of Equity in Contracts
– Explain the role of equity in protecting weaker parties in contractual relationships with parties who are in a position to exploit them.
– Explain the steps that a party who is in a position to take advantage must take to ensure that contractual arrangements with a weaker party will not be set aside by equity.
– Identify the grounds upon which equity will set a contract aside because of unconscionability.
– Identify the requirements that must be met for equity to rescind a contract as a result of misrepresentations made before the contract was formed.
– Explain how equity treats contracts entered by parties who have not reached the age of majority or lack the mental ability to understand the nature of their contractual commitments.
– Identify the requirements that must be met in order for equity to enforce an agreement to release a party from his obligation to perform all of his contractual commitments.
– Describe the equitable remedies for breach of contract and explain when they are available.
5. Assignment of Rights
– Explain what an assignment of rights is and identify the requirements for an effective statutory assignment and the requirements for an effective equitable assignment of rights
6. Fiduciary Relationships and Agency
Explain what is meant by a fiduciary relationship.
Fiduciary relations simply means relationship of confidence, for exampple where one party on behalf of another party (such as lawyer-client relationship).
Describe the three generic types of agency.
The three generic types of agency are:
Buyer agency: in this type of agency relationship the buyer appoints an agent who acts on his behave.
Seller’s Agency: in this form of agency relationship, the seller appoints an agent who acts on his behave.
Dual Agency: an agent acts on behalf of both the seller and the buyer.
Identify the ways an agency relationship is formed.
Agency relationship are formed in two main ways, the first one is the relationship between the agent and the principal (where the principal is the party the agent represents). The second relationship is between the principal and the party whom the agent does business with (these parties are refered to as outsiders).
Similary, agency can be formed by a contract that entails the principal giving the agent authority to act on his behalf, the agent has to agree to this contract and he receives a certain fee for his services.
Distinguish between actual and apparent authority in agency situations.
Actual authority is expressed and implied authority given to the agent by the principlal. The expressed authority is given through written or oral statement. However, implied authority is presented to the agent through implication. This by inferrence from the agent’s position or through reasonable necessity to carryout his authority.
Apparent authority means the authority a third party reasonably believes the agent possess, owing to the actions of the principal.
Explain how agency by estoppel arises, and what a principal must do to avoid being bound when an agent acts outside the scope of her actual authority.
Agency by estoppel occurs in a situation where an agent surpasses his actual authority, yet acts within the bondaries of his apparent authority, thus binding the principla to a contract against his desires. Agency by estoppel may as well occur in different situations, for example an agent whose contract has expired with the principal may still act on behalf of the principal, and continue to bind the principal.
To avoid such situations, the principal needs to inform the outsiders when an agents stops to act on his behalf. In case, the actual authority of the agent has been reduced by the principal, the principal should communicate the same to the outside world.
7. Legal Structures of Business
Distinguish among the major forms of legal structure of business ventures and identify the major characteristics of each form.
There are four major forms of legal structure of business ventures. These include:
Sole propietorship: this is managed by one person who has unlimited liability, meaning that his personal assets may be taken to pay for pending debts incurred by the business. In this form of business, the sole proprietor does not share profits and losses with anybody. Decisions are made by one person , and capital is obtained from the owner of the business through personal savings and loans from friends or banks.
Partnership: this form of business is formed by two or more peole who pool their individual resources together. Parternships are easy to form since there are no special business rules that guide its formation. In partnership, just like in sole ownership, the ownes have financial liability towards the business, thus implies that if the business borrows money and fails to pay, the assets of the owners can be seized to repay the loan. Profits and losses are shared between the partners. In addition, decision making is made by the partners, and source of capital comes from the partners. They can as well borrow from different lenders. Taxation in partnership entail income received from the business.
Corporations: the last form of business is the corporaton, which is registered as a separate legal entity from the owners, and thus has ability of taking on its responsbilities. The ownership of a corporation is through shares, and therefore owners are referred as shareholders, and can manage the operation of the corporation as directors. The assets of shareholders are protected and cannot be seized to recover the debts of the corporation. Profits are shared out to the shareholders as dividends. When losses are made, no dividends are paid. Decision making is made through the board of directors. Sources of capital include shares issued out, or borrowing from different financiers. A corporation is taxed separately from its shareholders based on income it makes. Ownership can easily be transferred by buying of sharers.
Explain the nature and degree of partners’ exposure to risk of liability in general partnerships, limited partnerships, and limited liability partnerships.
General partnership: each of the partners in the business bears the whole risk of the business collapsing. Supposing the business fails, the partnership together with personal assets of the partners are at risk of being seized to repay the debts of the business. This simply means that partners have unlimited liability.
Limited partnership: in this form of partnership, at least one of the partner is under unlimited liability, whereas other partners have limited liability. This implies that the limited partners can only be liable to the amount they have invested in the business.
Limited liability partnerships: Though this form of partnership is similar to that of general partnership, it has specific limitations on the liability of partners. However, the limitation on liability differs from one jurisdiction to another (in Canada). The personal assets of partners in this partnership are protected, but partners will be held liable for their own negligence. Still, partnership assets can be seized to payoff claims against the partnership.
Describe the relationship of shareholders and directors to their companies.
Shareholders are the owners of the companies, they gain this ownership through buying shares of the company (investing in the company). However, directors are the ones that manage the company. They are related to shareholders in that directors come from shareholders, meaning that shareholders turn to be directors. For instance when two people buy equal shares of a company, they will as well be directors of the company when they manage the affairs of the company.
Show how agency law applies to the relationship of companies to the various stakeholders with which they have relationships.
Agency law is the law or regulations that guides the relationship of the agency (an agent and the principal). In relation to companies, the agency law affects the various stakeholders in that they have to deal with the agent instead of dealing directly with the company.
Explain what mechanisms are available to protect the interests of minority shareholders.
One way to protect minority shareholders is through voting where each share represents one vote. This gives proproptional representation to shareholders.
Describe the duties that a director has to his company and its shareholders.
The directors have a duty to follow the consitution of the company and use the powers they have for the betterment of the company. They as well have a duty to disclose any conflict of interest with the company. For the shareholders, the directors have a duty to act in the best interest of all shareholders.
Identify the distinguishing characteristics of corporate forms other than companies, including joint ventures, crown corporations, municipal governments, and unions, and show how they differ from incorporated companies.
A joint venture is formed by business entities, companies, partners or even individuals who come together to carryout a certain business venture. The main attribute of a joint venture is that is normally restricted to a certain business and for a certain period. For example, an international company may enter into a joint venture for it to market and sell its goods in an international trade fair. Unlike incorporated companies, joint ventures take various forms of business entity. For example they can be registered as prtnerships and therefore guide by rules governing partnership.
8. Employment and Labour Relations
– Describe the characteristics of an employment contract and the tests used to distinguish between employment and independent contractor relationships.
Employment contract entails one party, who is the employer entering into a contract with another party, the employee to offer renumeratuon for work or services offered. At times, those who offer services to others are independent contractors, for instance doctors and teachers offer services to groups that are not employers, rather than patients and students respectively.
The tests used to distinguish between employment and independent contractor relationships, are underlined below:
The degree of control exercised over the individual by the employer: the more control offered by the employer over the person, the more likely that the relationship shared is that of employment.
The ownership of tools, opportunity of profit, and risk of loss from undertaking the requested service: sharing of profits and losses as well as ownership of tools indicates that the relationship is independent contractor.
Degree of integration: the manner of work being done is considered in regard to the business itself. If the work is integral to the business, then the relationship would be most likely be that of employer-employee, but if it is adjucnt, then the relationship would be that of an independent contractor.
Explain the nature and role of Human Rights legislation
The nature of human rights legislation is conveived as applicavle in all situations and placee. The role of human rights legislation is to uphold the natural and fundemental rights of a person, such as, prohibiting discrimination in terms of sex, race or age, and to uphold equal access to employement opportunities.
Show the bases on which an employee can be dismissed, and the consequences of wrongful dismissal
There are a number of reasons or grounds in which an employee can be dismissed, they include serious misconduct by the employee, habitual neglect of duty, incompetence by the employee, conduct incompatible, willful disobedience, and causes include harrasment of other workers, taking alcohol and drugs at the workplace and disruption of work.
However, where an employee is dismissed wrongful, an employee does not need to take the matter to the court, he can seek redress from employment standards tribunal. If the tribunal holds that the employee was wrongfully dismiseed, then he has to be reinstated. In addition, the employer may pay the employee damages for wrongful dismissal.
Describe the nature of collective bargaining legislation
the nature of collective barganining legislation is meant to guarantee the basic rights of employees to join trade unions. This is meant to encourage and promote trade unions.
Explain the process of certification of a collective bargaining unit, and show how negotiations are carried out in the collective bargaining process
The process of certification involves employees coming together to form a union under federal or provincial law, which will allow the union to be recognized if it meets the set laws. Collective barganing process are contract reached by the labor union on behalf of the employees and the employer, regarding their terms and conditions of employment, for example work hours and pay. The agreement reached is termed as collective agreement.
Describe the nature and requirements for legal strikes and lockouts
Strikes and lockout are means employees use to push for better terms of employment. Strikes and lockouts for them to be legal have to be done after collective bargining has failed, and the trade union has given a notice for the same.
Show the advantages of compulsory arbitration
The benefits of compulsory arbitration include avoidance of hositility between parties in dispute, it is cheaper away of resolving disputes compared to litigation, it is also faster than litigation and it is flexible way of resolving disputes.
9. Sale of Goods
Identify the elements of a contract for the sale of goods, and the requirements for its enforceability
the contract of sale of goods is formed between the customers and seller. The main elements of this contract are terms include terms of contract relating to sale, the delivery of the goods, the transfer of ownership the goods, and the remedies for breach of the contract terms.
For the contract of sale of goods to be enforced, there must be exchange of goods from the seller to the buyer.
Explain the rules established by the Sale of Goods Act for the passing of title from the seller to the buyer
The Sale of Goods Act sought to establish rules that for goods to pass from seller to the buyer, they must be suitable for the aim they are solf for, and be of reasonable quality. When these two rules are followed, then ownership is passed from seller to buyer.
Describe the rights and obligations of the seller and the buyer under the Sale of Goods Act, including the requirements and effects of implied warranties and conditions
The Sale of Goods Act stipulates the conditions and warranties of the sales transaction. Conditions are terms of the contract that are important to the aim of the contract.
Therefore, in each sale contract, it is means that:
The seller has got the rights to sell his goods.
The goods being sold are reasonably fit for the intended purposes as expressed by the buyer.
Goods sold are of merchntable (of reasonable) quality.
Goods sold through a sample will have similar qualities as the sample, and lastly, where goods are sold by description, they will match with the description stated.
Warranties are minor terms in the contract, though they are still important. They imply that: the buyer after buying the goods will enjoy its possession within claims from third parties. Secondly, goods sold to the buyer are free from any other third party unkwon to the buyer at the time of buying or entering into the contract.
10. The Law of Insurance
Describe the basic characteristics of indemnity and non-indemnity insurance.
The main characteristics of idemnity is that the insured is supposed to be restored to his initial position, and not to profit from the event he has insured.
Explain the role of insurance in managing risk.
Insurance helps people and companies to manage their risk because they can transfer their risks to the insurer through the insurance policies they take. Accordingly, if the insured suffers any loss (that has been insured) the insurer compansates the insured person or business. However, insurance does not mean that all risks are eliminated, at times it can be equally expensive and may not be availabe.
Define insurable interest and explain why it is required as a condition of recovery under the terms of an insurance policy.
Insurabe interest is an interest to determine if the insured benefits or does not benefits from the exitsnece of the insured property/thing, and will therefore suffer if that particular property/thing is destroyed. The motive of this is that people should only be allowed to insure items or property they have insurable interest in, so that they do not destroy what they have insured because they will suffer its loss.
Identify the elements that are essential to every insurance contract.
Insurance contract is an agreement made through the insurance policy taken. The elements essential to every insurance contract include:
Duty
