Performance and Injunction Questions

This assignment consists of two elements:

• Your responses to questions (as listed below) taken from Chapters 1 to 9 in the text; and

• Your responses to questions relating to case based questions (as listed below) taken from Chapters 1 to 9 in the text.

This assignment will require you to submit a formal report of your responses to the questions as a Word document submitted through the Assignment 1 Turn It In drop box on the course Moodle site. Do not repeat the questions in your submission but make sure that you number your responses consistent with the assignment.

There is no formal minimum or maximum length for your reports but you should expect that a minimally satisfactory response for each question will be at least 150 words and at least 250 words for each case based question.You may exceed this minimum but a minimally satisfactory response is not likely to be less than the minimums stated above. Make sure you reference any external sources you use in your responses.

the doc file will be the question sheet, and the powerpoint will be the resource. i will post more ppt to provide more information.

DE BUAD 209 Business Law Assignment 1 Guidelines and Instructions COURSE ASSESSMENT OVERVIEW This course has 3 types of assessment activities: • Sixteen online quizzes which examine your knowledge and understanding of the business law theories, concepts and rules found in all the chapters in the Yates, et al, text; • Two assignments which will test your ability to apply a range of theories, concepts and rules in business law; • A final exam which tests your knowledge, understanding and application of business law theories, concepts and rules as presented in the Yates, et al, text. ASSIGNMENT 1 GUIDELINES This assignment consists of two elements: • Your responses to questions (as listed below) taken from Chapters 1 to 9 in the text; and • Your responses to questions relating to case based questions (as listed below) taken from Chapters 1 to 9 in the text. This assignment will require you to submit a formal report of your responses to the questions as a Word document submitted through the Assignment 1 Turn It In drop box on the course Moodle site. Do not repeat the questions in your submission but make sure that you number your responses consistent with the assignment. There is no formal minimum or maximum length for your reports but you should expect that a minimally satisfactory response for each question will be at least 150 words and at least 250 words for each case based question. You may exceed this minimum but a minimally satisfactory response is not likely to be less than the minimums stated above. Make sure you reference any external sources you use in your responses. Submissions that are excellent and earn a grade of 80 and higher will have no errors of grammar, spelling, citation, referencing, or writing style. They will exhibit an appropriate level of professionalism in terms of their formatting and they will have evidence of secondary research to support the responses. The responses will cover all aspects of what is stipulated as required in each question and consistent with the grading rubric below. Submissions that are very good and earn a grade between 68 and 79 will have some errors of grammar, spelling, citation, referencing and some issues with writing style and DE 209 Assignment 1 Guidelines and Instructions – revised September 2018 clarity of expression. They will also not demonstrate a high level of secondary research to support responses and they will be consistent with the grading rubric below. Submissions that are satisfactory and earn a grade of 50 to 67 will have significant examples of spelling, grammar and writing style errors and only respond to the questions in a perfunctory manner. They will be consistent with the grading rubric below. Submissions that are unsatisfactory and earn less than 50 will have serious issues with all of the elements discussed above. Responses that are unintelligible will receive a grade of 0. Again, they will be consistent with the grading rubric below. ELEMENTS Issue identifies by name the area/s of law that is relevant to the problem question and clearly describes the legal problem that must be addressed. Rules of Law states the relevant legal principles. The source of authority will be a statute, case law or a combination of both. Analysis consider each legal principle identified in the Rules section and explains its relevance to the facts. It states how each principle can be applied/distinguished to support logical arguments about how the Issue(s) will be resolved. Decision is stated and provides an overview of how the arguments in the Analysis section address the Issue(s). Professionalism The submission is clear, concise, and precise. It employs proper sentences and carefully crafted paragraphs. The grammar, spelling and punctuation are correct. Unsatisfactory (0-49) Neither the relevant area(s) of law nor the legal problems that need to be addressed are identified with precision. Satisfactory (50-67) The area of law is correctly identified but the statement does not clearly describe the legal problem(s) that need to be addressed. Some identification of relevant legal principles. In the Moot Project, the correct source(s) of authority have not been cited accurately, or at all. The discussion considers some of the relevant legal principles but does not effectively apply those principles to the key facts to support logical arguments about how the Issue(s) will be resolved. Very Good (68-79) The area of law and the legal problem(s) to be addressed are identified but the description of the problem(s) is unclear or incomplete. All or most of the relevant legal principles are stated, but the explanation of the principles is unclear or incomplete Excellent (80-100) The area of law and the legal problem(s) to be addressed are identified clearly and completely. The discussion considers the application of most of the relevant legal principles to the key facts but the arguments are not all clear, and some are incomplete. The discussion is a clear, comprehensive analysis of the relevant legal principles and their application to the facts. It supports logical arguments about how the Issue(s) will be resolved. The Decision is not stated or is not supported adequately. The Decision is clearly stated. It is supported by some of the arguments but does not adequately explain how they address the Issue(s). The submission contains numerous grammar, spelling, and punctuation errors. The reader/listener is unlikely to understand much of the material that is presented. The submission is marred by grammar, spelling, and punctuation errors. The reader/listener must work hard to understand the material presented. The Decision is clearly stated. It is supported by most of the arguments but the explanation of how those arguments address the Issue(s) is unclear/incomplete. The submission contains some grammar, spelling, and punctuation errors. While it may not be a joy to read, or to hear, it is easy to follow. The Decision is clearly stated. It is well supported by arguments in the Analysis section and clearly explains how those arguments address the Issue(s). The submission employs correct grammar, spelling, and punctuation. It is clear, concise and precise. It is a joy to read, or to hear. No relevant legal principles have been identified with precision. The discussion of the facts does not refer to any relevant legal principles, or does so inadequately. 2 All relevant legal principles are clearly explained. In the Moot Project, all correct sources of authority are given. 3 DE 209 Assignment 1 Guidelines and Instructions – revised September 2018 Responses to questions, as mentioned above, will require some level of secondary research to support answers. Where you use published material not contained in the text, you must cite it and reference it as you would in any other report using APA referencing and citation style. Where you use personal knowledge or experiences, no reference is necessary but you must make it clear that this is the source. Where you refer to material from the text, it is acceptable to simply provide a page reference in parentheses. Be very careful not to plagiarize the text, ie, do not to use the exact wording of the text to respond to questions but if you do or if you paraphrase the text, you must cite them properly in accordance with APA citation guidelines. This assignment is worth 20 final marks in the course. The marks will be split equally between each element, ie, responses to questions will be worth 1 mark each and responses to case and discussion questions will be worth 2 marks each. Responses will be assessed on their comprehensiveness, ie, the first four elements of the rubric (70%) and professionalism (30% – grammar, spelling and writing style). ASSIGNMENT 1 INSTRUCTIONS Submit a report containing your responses to the following questions and case discussion questions based on Chapters 1 through 9 of the text by the deadline published in the Assignment Schedule. Your report must be submitted as a Word document through the Assignment 1 Turn It In drop box on the Moodle course site. Do not submit PDF’s. Questions: Respond to the specific questions asked below and ensure that you include in your responses, discussion of the elements in the grading rubric. 1. Distinguish between specific performance and injunction. Explain the restrictions on their availability. 2. Explain how fraudulent, negligent and innocent misrepresentations differ. Identify the remedies that are available for each type of misrepresentation. 3. Distinguish between defamation, trade slander, and deceit, indicating in what situations each would be used. 4. Explain and discuss three ways lawyers bill their clients. Which of the three is most commonly used? 5. Explain the role of implied terms in a contract. Who has the power to imply terms into a contract? When will the power be used? 6. Using the principles of stare decisis, explain how judges determine whether or not they are bound by another judge’s decision in a similar case. 7. List and describe the principal advantages of alternative dispute resolution. 8. Why is the case of Haig v Bamford considered important in the recent development of tort law? 3 3 DE 209 Assignment 1 Guidelines and Instructions – revised September 2018 9. Give five examples of contracts deemed by the courts to be against public policy and describe the effect of such a designation. 10. Distinguish among duress, undue influence, and unconscionability and give examples of each. Case Discussion Questions Respond to the specific questions asked below and ensure that you include in your responses, discussion of the elements in the grading rubric. Case 1 A separated couple negotiated an agreement under which the wife waived her rights to her husband’ pension benefits. The husband signed the interspousal agreement on October 9, 2010. The wife signed it on October 13. Unfortunately, the husband died unexpectedly on October 12. The wife claimed not be bound by the interspousal agreement and made a claim under the husband’s pension plan. She was denied benefits. She applied to have the Court nullify the interspousal agreement so she would qualify as the beneficiary of the pension benefits. Should the Court enforce the interspousal agreement, even though the wife signed it after the husband died? Was this a case in which the parties did not intend to be bound by their agreement until the written contract was signed by both of them? Case 2 Roper and Jensen had consumed beer and smoked marijuana before going with Gosling for the evening to a bar, where they all consumed a considerable amount of alcohol. They were drunk when they left and got into Roper’s car so that he could drive them home. A single-car accident caused by Roper’s impairment occurred in which Roper rolled the car and Gosling was seriously hurt. Gosling sued Roper for negligence. Indicate what arguments can be raised in Roper’s defense and what factors will the courts take into consideration in determining liability. Would it make any difference if the court determined as a finding of fact that although a reasonable person would have been aware that Roper’s ability to drive was impaired, Gosling wasn’t in fact aware of this when she got into the vehicle with Roper? What if Gosling didn’t have any other way home? If Gosling did know about Roper’s impairment, should her conduct be a complete bar to recovery? Case 3 Chopra went to Eaton’s department store seeking a refund. An argument ensued. Smith (the store’s security guard) told Chopra that he would have to leave. Smith took Chopra’s elbow and started to escort him out of the store. Nears the doors, Chopra pushed Smith away, presumably wishing to go through the doors unassisted. Smith 4 3 DE 209 Assignment 1 Guidelines and Instructions – revised September 2018 reacted quickly and violently putting Chopra into a headlock. Chopra’s glasses were knocked off his head and his lip was cut; he was handcuffed and detained in the security office, and subjected to racial slurs. Chopra asked to leave, asked to call his wife, and asked Smith to call the police. All of these requests were refused. After Chopra had been detained for four hours, the police arrived and charged Chopra with assaulting Smith and causing a disturbance. All charges were later dismissed. Identify what causes of action are available to Chopra to address the wrongs done to him. Case 4 According to the Residential Tenancies Act in place in Nova Scotia, residents who have been renting premises for more than five years have security of tenure, which means that they can be given notice to leave only if they are in violation of their obligations under the lease. The Act, however, specifically excludes people who are living in public housing, and Mrs. Evans, a single mother with two children, had been living in the public housing for 10 years when she was given one month’s notice to leave. What arguments might she raise to defeat this notice to vacate? How would it affect your answer to know that Mrs. Evans was a black woman, and she was one of a group of black woman on social assistance particularly hard it by the legislation in question? Case 5 The younger Mr. Gill was fluent in English and a sophisticated businessperson. He had worked in a credit union for a number of years and had managed his father’s berry farm. To take advantage of a business opportunity, he arranged with the Royal Bank to borrow $87,000. During the negotiations, it became clear that he could get a more favorable rate of interest if his father guaranteed the loan. In fact, the son had done a considerable amount of banking on behalf of his father, who was a customer at the same bank. The elder Gill could not read, write or speak English and relied on his son in all his business dealings. The documents were prepared and the son brought his father to the bank to sign them. At no time did he explain to his father that he would be signing a personal guarantee and the evidence was clear that the father had no idea what he was signing other than that it was a document associated with a loan transaction. Gill Sr. had implicit faith in his son’s handling of business affairs. Gill Jr., on the other hand, was so excited about the deal that he apparently never explained the nature of the documents to his father. It is clear in this situation that at no time was there any misrepresentation to the father or the son on the part of the bank. When the son defaulted on the loan, the bank turned to the father for payment. Should Gill Sr. be held responsible for this debt? What precautions should the bank have taken? Identify the best arguments for the father. What arguments should the bank advance? A Caution about Plagiarism Plagiarism is a serious academic offence that can result in significant negative consequences. 5 3 DE 209 Assignment 1 Guidelines and Instructions – revised September 2018 The Okanagan School of Business has a zero tolerance policy with respect to plagiarism and you are cautioned to be very careful not to commit plagiarism when responding to assignments like this. Plagiarism can take a number of forms in this type of assignment including but not limited to: • Submitting the work of another student as your own; • Simply copying the contents of the text as it relates to the questions above; and • Paraphrasing the contents of the text without proper acknowledgement. If you have any doubts about plagiarism as it applies to this assignment, do not hesitate to contact me for guidance. Where you use outside sources in your responses, you must use APA citation and referencing protocols. In some cases, failure to properly cite and reference sources will constitute plagiarism. When you use direct quotations from the text or where you paraphrase the text, you must cite and reference the text using the APA protocols. DO NOT ask for an extension of the deadline for any reason other than valid medical circumstances. Requests for medical extensions will only be considered if you notify me in advance of the deadline about the medical problem AND attach the work that you’ve done to that point in time with your notification AND support your request with a valid medical certificate presented to me within 24 hours of the deadline. Dr Michael Conlin mconlin@okanagan.bc.ca 6 3 Yates, Bereznicki-Korol, Clarke Business Law in Canada, Eleventh Edition Chapter 1: Managing Your Legal Affairs 1-1 Learning Objectives • When you complete Chapter 1, you should be able to: 1. Explain the meaning of “sophisticated client” 2. Explain the role of the lawyer 3. Identify when to hire a lawyer and when to represent yourself 4. Explain how to find an appropriate lawyer continued… Copyright © 2017 Pearson Canada Inc. 1-2 Learning Objectives 5. Review how lawyers bill their clients 6. Describe legal aid 7. Outline the procedure to follow to complain about your lawyer 8. Discuss the ethics of lawyers and of clients Copyright © 2017 Pearson Canada Inc. 1-3 Question for Discussion • “Do I need a lawyer?” • Does asking this question imply, affirmatively, that you definitely need a lawyer? • Record your thoughts now • Discuss at the end of class if your answer has evolved Copyright © 2017 Pearson Canada Inc. 1-4 Becoming Sophisticated Clients • Confident – Not in awe of lawyers • Knowledgeable – Identify, not necessarily solve legal issues • Up-to-date – Internet continued … Copyright © 2017 Pearson Canada Inc. 1-5 Becoming Sophisticated Clients (cont.) • Understands the respective roles of the lawyer and the client • Knows when to represent themselves • Knows when and how to locate and hire a suitable lawyer • Understands the various costs to be paid to a lawyer • Knows how to deal with dissatisfaction with a lawyer continued… Copyright © 2017 Pearson Canada Inc. 1-6 Becoming Sophisticated Clients (cont.) • Business decisions have serious consequences – Consider appropriate laws – Importance of evidence means it is important to keep records Copyright © 2017 Pearson Canada Inc. 1-7 The Role of the Lawyer • Provides relevant legal advice – Advises and recommends • Client is the decision maker – Not the lawyer • Lawyer bound to follow client’s instructions – If lawful continued … Copyright © 2017 Pearson Canada Inc. 1-8 The Role of the Lawyer (cont.) • Solicitor-Client privilege: – the duty of the lawyer to keep the information provided by the client confidential – All relevant information needed by lawyer in order to get the best result – Confidentiality – access to justice would be significantly reduced without this fundamental part of our legal system Copyright © 2017 Pearson Canada Inc. 1-9 Question for Discussion • What experience have you had with the legal system? How did you feel about it? Copyright © 2017 Pearson Canada Inc. 1 – 10 When to Hire a Lawyer • Form of business organization – Partnerships, franchises – Income tax, liability, estate planning • New business, buying existing business – Minimize risks and liabilities • Compliance issues – Ignorance of the law is no excuse • Physical location – Long term lease terms continued … Copyright © 2017 Pearson Canada Inc. 1 – 11 When to Hire a Lawyer (cont.) • Bank and loan documents • Contracts – Employment, supply, customers • Intellectual property – Patents, trademarks, and copyright • Selling the business – Assets, shares – Tax implications Copyright © 2017 Pearson Canada Inc. 1 – 12 When to Represent Yourself • Obtaining legal “information,” not advice • Online sources available • Understanding and assessing the accuracy of information is crucial • Consider type of issue at stake: – Criminal charges necessitate a lawyer – Civil litigation – Non-complex Small Claims Court action – Account collections Copyright © 2017 Pearson Canada Inc. 1 – 13 How to Find an Appropriate Lawyer • Make a list: – Yellow pages / internet advertising – Referrals – Provincial Law Society • Legal referral services • Meet with each lawyer on your list to find the most appropriate • Establish mutual trust • Ongoing relationship Copyright © 2017 Pearson Canada Inc. 1 – 14 How Lawyers Bill Their Clients • Fixed fee • Hourly rate • Contingency fee: the lawyer receives a percentage of what the client collects • Disbursements: other charges incurred by lawyer on behalf of client • Retainer: works as a deposit continued … Copyright © 2017 Pearson Canada Inc. 1 – 15 Question for Discussion • Is there a limit on contingency fees in your jurisdiction? • Do you agree with the concepts of limits? • Is the limit in your jurisdiction too high or too low? • Should it change based on the risk of success with the case? Copyright © 2017 Pearson Canada Inc. 1 – 16 Legal Aid • Eligibility varies from province to province • Client must meet certain financial guidelines involving household income and assets • Not everyone qualifies • Not all types of cases are covered • Small businesses are not usually able to receive legal aid Copyright © 2017 Pearson Canada Inc. 1 – 17 How to Complain About Your Lawyer • Provincial law societies are self-governing and include regulations for complaints about conduct • Law societies do not deal with fee disputes – Mediation – Review by court official continued … Copyright © 2017 Pearson Canada Inc. 1 – 18 How to Complain (cont.) • Law society complaint resolution process for lawyer conduct – Mediation – Formal investigation if warranted • Compensation requires additional civil action Copyright © 2017 Pearson Canada Inc. 1 – 19 Ethics of Lawyers • Every provincial and territorial law society has rules of professional conduct • Ethical behaviour implies integrity, honesty and professionalism • Failure to observe ethical behaviour may result in fine, suspension, disbarment, or criminal charges, • Vast majority of lawyers are completely ethical Copyright © 2017 Pearson Canada Inc. 1 – 20 Ethics of Clients • There is no established Code of Business Conduct in Canada • High profile failures: – Martha Stewart – Conrad Black – Rob Ford continued… Copyright © 2017 Pearson Canada Inc. 1 – 21 Ethics of Clients, continued • Former EnCana CEO, Gwyn Morgan: “When it comes to business and government, there is an especially heavy responsibility that comes with leadership. … It’s up to Canadian business leaders to act as role models with strong ethical values… .” Copyright © 2017 Pearson Canada Inc. 1 – 22 Code of Business Conduct • “An organization’s continued good reputation and respectability depends on building and maintaining a culture founded on ethical values, integrity, and trust” (Allison Dempsey) • Businesses should establish their own code of conduct for the organization and their employees continued… Copyright © 2017 Pearson Canada Inc. 1 – 23 Code of Business Conduct (cont.) • Draft one for your business – Statement of values – Establishes procedural norms and behavioural standards continued… Copyright © 2017 Pearson Canada Inc. 1 – 24 Code of Business Conduct (cont.) • A code of ethics should discuss: – conflicts of interest – protection and use of corporate assets and opportunities – confidentiality of corporate information – fair dealing with the issuer’s security holders, customers, suppliers, competitors, and employees – compliance with laws, rules, and regulations – the reporting of any illegal or unethical behaviour continued… Copyright © 2017 Pearson Canada Inc. 1 – 25 Code of Business Conduct (cont.) Copyright © 2017 Pearson Canada Inc. 1 – 26 Question for Discussion • Does your business / employer have a mission statement? Does your business / employer have a code of conduct? Are these referred to and used in the daily conduct of business? Copyright © 2017 Pearson Canada Inc. 1 – 27 Social Responsibility • The International Organization of Standardization suggests seven core subjects of social responsibility: – organizational governance – human rights – labour practices – the environment – fair operating practices – consumer issues – community involvement and development continued… Copyright © 2017 Pearson Canada Inc. 1 – 28 Social Responsibility (cont.) • Canadian Business for Social Responsibility (CBSR) best practice approach – defines corporate social responsibility as “a company’s environmental, social and economic performance and the impacts of the company on its internal and external stakeholders.” • Small businesses may adopt code of conduct and CBSR best practice approach Copyright © 2017 Pearson Canada Inc. 1 – 29 Yates, Bereznicki-Korol, Clarke Business Law in Canada, Eleventh Edition Chapter 2: Introduction to the Legal System Learning Objectives • When you complete Chapter 2, you should be able to: 1. Define “law” and identify the types of law that exist in Canada 2. Distinguish between the civil law and common law legal systems found in Canada 3. Identify the sources of Canadian law 4. Isolate the three elements of Canada’s Constitution continued … Copyright © 2017 Pearson Canada Inc. 2-2 Learning Objectives (cont.) 5. Explain how legislative power is divided in the Constitution 6. Detail how legislation is created in the parliamentary system 7. Describe the rights and freedoms protected by the Charter of Rights and Freedoms 8. List the areas and grounds upon which human rights legislation prohibits discrimination Copyright © 2017 Pearson Canada Inc. 2-3 What Is Law? • Difficult to come up with a satisfactory, allinclusive definition for law • Law has been defined: – In moral terms (natural law) – By source (legal positivists) – In practical terms (legal realists) • In Canada, parliamentary supremacy requires that enactments of federal and provincial legislatures are primary source of law continued… Copyright © 2017 Pearson Canada Inc. 2-4 What is Law? (cont.) • Definition for purposes of class: – “Law is the body of rules that can be enforced by the courts or other government agencies” – In this context, law is distinct from other kinds of rules and conventions as they are not enforced by a judge • Government agencies also enforce laws • Law and morality are not synonymous Copyright © 2017 Pearson Canada Inc. 2-5 Categories of Law • Substantive Law – The rights and rules that govern behaviour and set limits on conduct • Procedural Law – determines how substantive laws will be enforced continued … Copyright © 2017 Pearson Canada Inc. 2-6 Categories of Law (cont.) • Public Law – Includes Constitutional Law and determines how the country is governed and regulates our relationship with government • Private Law – Regulates personal, social and business relationships Copyright © 2017 Pearson Canada Inc. 2-7 Civil Law Legal System • Emperor Justinian – Codified Roman law – Modified by Napoleon – Used in Europe and many countries originally colonized by France – Quebec’s noncriminal legal system is based on the French Civil Code Copyright © 2017 Pearson Canada Inc. 2-8 Common Law Legal System • Common law system emerges in England – Feudal system centralized power in hands of king – During reigns of weak kings, power was decentralized – Royal judges became fairer to attract more litigants and broadened the authority of the state • Function of the royal court was to be impartial and enforce customs and traditions already in place Copyright © 2017 Pearson Canada Inc. 2-9 Stare Decisis • A system of justice where judges were required to follow precedent • Most significant feature of the common law system is that the decision of a judge is binding on all judges in lower courts • Allows the parties to predict the outcome of the litigation and thus avoid going to court • Following precedent can be inflexible and does not acknowledge changing social attitudes Copyright © 2017 Pearson Canada Inc. 2 – 10 Common Law • The precedent-making decisions of the courts of Great Britain • Judges “discovered” law in custom and traditions of “common people” • Borrowed legal principles from: – Roman civil law – Canon or church law – Law merchant Copyright © 2017 Pearson Canada Inc. 2 – 11 Equity • Common law courts had limitations due to the restrictions of stare decisis • Court of Chancery (Equity) provided relief • Resulting principles known as the Law of Equity – Did not hear appeals – Allowed flexibility in decisions but also appeared arbitrary Copyright © 2017 Pearson Canada Inc. 2 – 12 Statutes • Parliamentary enactments – take precedence over judge-made law • Legislation (Statutes and Regulations) overrides common law (judge-made law) • Statutes and legislation determine what we must do to carry on business in Canada Copyright © 2017 Pearson Canada Inc. 2 – 13 Sources of Law Copyright © 2017 Pearson Canada Inc. 2 – 14 Confederation • British North America Act – Now Constitution Act, 1867 • Constitution similar in principle to that of the United Kingdom – Magna Carta – Bill of Rights – Rule of law: citizens are protected from the arbitrary actions of the government • Statute of Westminster (1931) continued… Copyright © 2017 Pearson Canada Inc. 2 – 15 Confederation (cont.) • Constitution Act, 1982 – Charter of Rights and Freedoms • Canada’s Constitution has three elements: – Statutes – Case law (i.e. jurisdiction to create statutes) – Conventions: unwritten rules dictating how the government is to operate and include the rule of law Copyright © 2017 Pearson Canada Inc. 2 – 16 Constitution and Division of Powers • Formerly known as the British North America Act – An Act of the U.K. Parliament • Sections 91 and 92 divide powers between federal and provincial governments continued… Copyright © 2017 Pearson Canada Inc. 2 – 17 Constitution and Division of Powers (cont.) • “Peace, Order and Good Government” – Residual power for Federal government to make law on things not included in Constitution Act • Pith and Substance – intra vires continued… Copyright © 2017 Pearson Canada Inc. 2 – 18 Constitution and Division of Powers (cont.) Copyright © 2017 Pearson Canada Inc. 2 – 19 Conflicting Powers • Sometimes, one level of government passes legislation that may infringe on the powers of another – ultra vires: beyond one’s jurisdiction or power – “colourable legislation:” trying to make an area of legislation look like it is of a different kind – double aspect doctrine: uphold laws where provincial and federal aspects are equal – paramountcy: in event of conflict, federal legislation is operative Copyright © 2017 Pearson Canada Inc. 2 – 20 Delegation of Powers • Direct delegation of power is prohibited – To move power between federal and provincial jurisdictions requires constitutional amendment • Indirect delegation of power is permitted – Federal and provincial government can delegate powers to inferior bodies Copyright © 2017 Pearson Canada Inc. 2 – 21 Agreement to Share Powers • Shared powers between federal and provincial governments circumvents constitutional rigidity – Transfer-payment schemes – Conditional grants • Federal government may set national standards to which funding is tied and ensure equal access to services Copyright © 2017 Pearson Canada Inc. 2 – 22 Legislative Power • Canada’s Constitution requires legislation to proceed through first (introduction), second (debate), and third (modifications) readings and has status of statute • Gains status of law after royal assent • Federal and provincial statutes are compiled and published • Judges interpret and apply statutes Copyright © 2017 Pearson Canada Inc. 2 – 23 Legislative Power (cont.) Copyright © 2017 Pearson Canada Inc. 2 – 24 Question for Discussion • Canada’s constitutional structure is essentially different from Britain’s because it consists of the federal government and ten provincial governments, each with power to act in their own jurisdiction. What impact does this have on businesses operating within, and among, provinces? Copyright © 2017 Pearson Canada Inc. 2 – 25 Protection of Rights and Freedoms • Human rights and individual freedoms protected through unwritten conventions as supported by common law • Concerns about entrusting the protection of personal rights and freedoms to common law led to development of two streams of legislation: – dealing with protecting human rights against abuses by the government – second aimed at protecting individuals against discrimination and intolerance by society at large Copyright © 2017 Pearson Canada Inc. 2 – 26 Canadian Bill of Rights • Provincial and federal governments were free to interfere with civil rights through legislation (i.e. Japanese internment) • Canadian Bill of Rights, 1960 attempted to limit authority of federal government to violate human rights • Not entrenched in Constitution • Effectiveness is limited Copyright © 2017 Pearson Canada Inc. 2 – 27 Charter of Rights and Freedoms • Charter was added as constitutional guarantee of basic rights and freedoms in 1982 – Eliminates power to interfere with human rights except by Constitutional amendment – Rights are protected by judges rather than governments continued… Copyright © 2017 Pearson Canada Inc. 2 – 28 Charter of Rights and Freedoms (cont.) • Limitations on Charter rights – Section 1: allows interference with rights and freedoms as may be justifiable in a free and democratic society – Section 33: legislatures can pass acts that infringe on rights “notwithstanding” the Charter, but legislation must be reviewed every 5 years (sunset clause) – Section 32(1): restricts operation of the Charter to government and government-related activities Copyright © 2017 Pearson Canada Inc. 2 – 29 Fundamental Freedoms • Everyone has the following fundamental freedoms as a result of the Charter: – freedom of conscience and religion – freedom of thought, belief, opinion and – freedom of expression, including freedom of the press – freedom of peaceful assembly and association Copyright © 2017 Pearson Canada Inc. 2 – 30 Democratic Rights • Include right to vote and to qualify to be elected • Reasonable limitations include restrictions to those who are underage or mentally incompetent • Section 4 ensures there will be an election at least every five years Copyright © 2017 Pearson Canada Inc. 2 – 31 Mobility Rights • Section 6 of the Charter ensures that Canadians can travel and live anywhere within the geographic limitations of Canada as well as enter and leave the country at will • Canadians have the right to earn a livelihood in any part of Canada – provincial licensing and educational requirements may create exceptions Copyright © 2017 Pearson Canada Inc. 2 – 32 Legal Rights • Section 7 states that we have the right to life, liberty, and the security of person • These rights must not be taken away except in accordance with “principles of fundamental justice” • Everyone is entitled to procedural fairness • Sections 8 and 9 prohibit such activities as unreasonable search and seizure and arbitrary imprisonment Copyright © 2017 Pearson Canada Inc. 2 – 33 Equality Rights • Section 15 prohibits discrimination in the application of the law and a general prohibition against discrimination • Federal and provincial laws must be applied equally to all • Provides for affirmative action programs • Equality provisions are important for business people – Human rights legislation – Government-funded projects Copyright © 2017 Pearson Canada Inc. 2 – 34 Language Rights • French and English have equal status • All federal government activities must be available in both official languages • Minority-language educational rights • Language rights and minority-language educational rights cannot be overridden by section 33 of the Charter Copyright © 2017 Pearson Canada Inc. 2 – 35 Question for Discussion • Do you believe there should be limits on rights and freedoms or should rights and freedoms be inalienable and guaranteed? Copyright © 2017 Pearson Canada Inc. 2 – 36 The Importance of the Changes to the Constitution • Charter provisions are generalizations, and courts interpret broad statements and create new law • Canada Act and repatriation • Quebec dissent and Referendum – Meech Lake Accord – Charlottetown Accord – Reference re: unilateral secession of Quebec Copyright © 2017 Pearson Canada Inc. 2 – 37 Human Rights Legislation • Broad federal and provincial legislation protect individuals against human rights violations by the public at large in a variety of settings • The Canadian Human Rights Act (CHRA) applies to abuses in sectors regulated by federal legislation – Ensure individuals have access to employment without barriers – Access to facilities, services, and accommodations also addressed continued … Copyright © 2017 Pearson Canada Inc. 2 – 38 Human Rights Legislation (cont.) • Human rights acts prohibit discrimination based on various protected grounds, including gender, religion, ethnic origin, race, age, and disabilities • Evolution of human rights protection – Three decades ago discrimination based on sexual orientation was not specifically prohibited – Reference re Same-Sex Marriage case continued… Copyright © 2017 Pearson Canada Inc. 2 – 39 Human Rights Legislation (cont.) • Tribunal hearings – After complaint and investigation – Can impose significant sanctions and remedies • For businesspeople, knowledge of the human rights codes applicable to their industry is essential • Duty to accommodate unless causing undue hardship Copyright © 2017 Pearson Canada Inc. 2 – 40 Question for Discussion • There are only certain protected areas and certain prohibited grounds in human rights legislation. Can you think of reasons for an area or ground to be considered for addition to the legislation? Copyright © 2017 Pearson Canada Inc. 2 – 41 Yates, Bereznicki-Korol, Clarke Business Law in Canada, Eleventh Edition Chapter 3: The Resolution of Disputes: the Courts and Alternatives to Litigation Learning Objectives When you complete Chapter 3, you should be able to: 1. Examine the alternative dispute resolution (ADR) methods: negotiation, mediation, and arbitration 2. Describe the court system in Canada 3. Outline the process of civil litigation 4. Explain the nature and function of regulatory bodies Copyright © 2017 Pearson Canada Inc. 3-2 Alternatives to Court Action • Alternative Dispute Resolution (ADR) • Processes for resolving disputes as an alternative to the courts • Main methods – Negotiation – Mediation – Arbitration continued… Copyright © 2017 Pearson Canada Inc. 3-3 Alternatives to Court Action (cont.) Copyright © 2017 Pearson Canada Inc. 3-4 Advantages of ADR Versus Litigation • Advantages – Parties to dispute maintain control of the solution – Fewer scheduling and procedural delays – Less distraction in ADR – Lower costs than associated with court process – Diminishes risk of adverse judgments – Preserves good will Copyright © 2017 Pearson Canada Inc. 3-5 Disadvantages of ADR Versus Litigation • Disadvantages – Judicial fairness and impartiality are not ensured – Courts have more power to extract information – Decisions do not follow precedent – Resolutions may not be enforceable – No public record of dispute or decision Copyright © 2017 Pearson Canada Inc. 3-6 Negotiation • Should be the first recourse for people who find themselves in a disagreement • Parties discuss the problem with each other in order to find a solution • Requires cooperation and compromise • May be conducted through representatives • Process may enhance relationship • Concessions and admissions made without prejudice will not hurt future litigation Copyright © 2017 Pearson Canada Inc. 3-7 Mediation • Neutral third party helps parties settle the dispute • Communication facilitated by mediator – Finds common ground – Encourages compromises • Parties are not bound to accept solutions offered by mediator • Successful mediators require considerable specialized training continued … Copyright © 2017 Pearson Canada Inc. 3-8 Mediation (cont.) Disadvantages: • Not the process to use where blame or liability for injury must be determined • Parties must be willing to disclose information • When power is imbalanced, mediation may just exacerbate the weakness of one party Copyright © 2017 Pearson Canada Inc. 3-9 Arbitration • Parties agree on an independent third party to make a binding decision • Often specified as means of resolving dispute in original contracts • Arbitrators may be specialists in the matter under dispute continued … Copyright © 2017 Pearson Canada Inc. 3 – 10 Arbitration (cont.) • Decision cannot be appealed but process may be reviewed by a court • Process is faster, less costly and more private than litigation • But more formal, more adversarial than mediation, and more costly than other forms of ADR Copyright © 2017 Pearson Canada Inc. 3 – 11 Internet Transactions • Online dispute resolution (“ODR”) programs have been developed to help resolve disputes between parties • Using ADR for online disputes: – Overcomes geographical issues – Reduces costs – Enables a quick resolution Copyright © 2017 Pearson Canada Inc. 3 – 12 Question for Discussion • Consider the advantages and disadvantages of the alternative dispute resolution processes. Would a businessperson benefit from using such a process in a dispute over the delayed delivery of material required in the manufacturing process? Copyright © 2017 Pearson Canada Inc. 3 – 13 The Courts • Procedures vary by province • Trials are open to the public; justice must be seen to be done • All litigants have equal access to the courts • Civil matters: – two private persons use the court as a referee to adjudicate a dispute – decide the matter on the balance of probabilities continued… Copyright © 2017 Pearson Canada Inc. 3 – 14 The Courts (cont.) • Criminal proceedings: – The government pursues the matter and prosecutes the accused – the judge (or jury) must be convinced beyond a reasonable doubt of the guilt of the accused • May face both criminal trial and civil action over same conduct • Regulatory offences: – Federal: environmental, fishing, and employment offences; provincial: motor vehicles, securities – subjects people to fines and imprisonment Copyright © 2017 Pearson Canada Inc. 3 – 15 Trial Courts of the Provinces • Provincial Court: – Lowest level in the Canadian court hierarchy – have a criminal jurisdiction over the less serious criminal matters – Small claims courts and family court are separate bodies but a division of provincial court system • Superior court of a province: – unlimited monetary jurisdiction in civil matters and deals with serious criminal issues – administration of wills and estates – bankruptcy courts operate within the superior court system Copyright © 2017 Pearson Canada Inc. 3 – 16 Canada’s Court System Copyright © 2017 Pearson Canada Inc. 3 – 17 Recent Developments • • • • • • Drug treatment courts Domestic violence courts Unified family courts Mental health courts Nunavut Court of Justice Sentencing circles: used primarily for cases involving Aboriginal offenders and victim • Aboriginal Courts • Criminal Justice Reform Copyright © 2017 Pearson Canada Inc. 3 – 18 Provincial Courts of Appeal • Appellate courts hear appeals from the lower courts of that province • An appeal court will consider a case only when questions of law are in dispute, not questions of fact • Not a new trial usually • Appeal court judges – read the transcript of the trial as well as the trial judge’s decision – deal with the specific objections to the trial judge’s decision submitted by the appellant’s lawyers Copyright © 2017 Pearson Canada Inc. 3 – 19 Courts at the Federal Level • Federal Court and the Federal Court of Appeal serve a function similar to that of the provincial superior courts • Tax Court of Canada was established to hear disputes about federal tax matters • Supreme Court of Canada: – the highest court in the country – has a strictly appellate function – nine judges appointed by the Government of Canada – Decisions set binding precedent Copyright © 2017 Pearson Canada Inc. 3 – 20 The Process of Civil Litigation • Before a decision is made to sue, all avenues for settling should be tried • Often the court requires the disputing parties to have tried these dispute resolution mechanisms before a trial procedure will be instigated continued… Copyright © 2017 Pearson Canada Inc. 3 – 21 Process of Civil Litigation (cont.) Copyright © 2017 Pearson Canada Inc. 3 – 22 Limitation Periods • Court action must be brought within a relatively short period of time from the event giving rise to the complaint • The plaintiff must commence an action by filing the appropriate pleading with the appropriate court • Varies depending on the jurisdiction and the nature of the complaint involved Copyright © 2017 Pearson Canada Inc. 3 – 23 Jurisdiction • Which province or territory? – Where defendant resides or incident occurred • Location of parties is not clear over internet – must be a connection or degree of interactivity before a local court will take jurisdiction • To avoid battles over jurisdiction, the parties should specify what law is to apply in their contract • Must choose what court to use – Small claims is simpler but awards are restricted Copyright © 2017 Pearson Canada Inc. 3 – 24 Pre-Trial Procedures • Pleadings – Some provinces: Statement of Claim (plaintiff) – Some provinces: Statement of Defence (defendant) – Counterclaim / Defence to Counterclaim • Applications for directions: concern what details have to be disclosed, what questions have to be answered, etc. continued… Copyright © 2017 Pearson Canada Inc. 3 – 25 Pre-Trial Procedures (cont.) • Discovery – Of documents / records – Examination for discovery: Verbal examination of witnesses under oath • Pre-trial conference: meeting to determine which issues remain to be tried and whether the parties can themselves resolve the dispute • Payment into court (formal offer to settle) Copyright © 2017 Pearson Canada Inc. 3 – 26 Recent Initiatives • Reforms to speed up the litigation process, especially when smaller amounts involved – Summary trials with evidence adduced by affidavit • By reducing costs and delay, the justice system is more accessible • All jurisdictions have created small claims courts with dramatically simplified procedures and reduced costs Copyright © 2017 Pearson Canada Inc. 3 – 27 Question for Discussion • The pre-trial process is long and involved and adds greatly to the expense of having a matter decided by the court. Consider the advantages and disadvantages of the various steps and suggest how they might be simplified. Copyright © 2017 Pearson Canada Inc. 3 – 28 The Trial • Plaintiff presents case – Burden of proof rests with plaintiff – The plaintiff’s case and witnesses are presented first – Cross examination by defendant’s lawyer – Plaintiff’s lawyer is prohibited from asking leading questions • Rules of evidence must be followed • Defendant presents case • Summarize evidence and make argument to court Copyright © 2017 Pearson Canada Inc. 3 – 29 Judgment • If there is a jury, the judge will instruct it on matters of law • The function of the jury is to decide questions of fact; the judge decides questions of law • Judge-alone decisions may be delivered immediately; more common for judge to hand down a judgment in writing later Copyright © 2017 Pearson Canada Inc. 3 – 30 Costs • Litigation costs are high • Judgments may award legal costs – Usually awarded to the victor but this is always at the discretion of the court • Party and party costs cover only a portion of actual costs continued… Copyright © 2017 Pearson Canada Inc. 3 – 31 Costs (cont.) • Solicitor/client costs • Solicitor and own client costs – Contract provision • If losing party – Your own full legal bill, and – All or part of the other party’s legal bill – Solicitor/client costs rare in some provinces Copyright © 2017 Pearson Canada Inc. 3 – 32 Remedies • Damages (monetary compensation) – General – Special – Punitive • Some other remedies – Accounting – Injunction – Specific performance – Declaration Copyright © 2017 Pearson Canada Inc. 3 – 33 Enforcement • • • • • • Examination in aid of enforcement / execution Seizure of personal property Sale of real property Garnishment of wages, accounts, debts Equitable receiver Prejudgment remedies / attachment continued… Copyright © 2017 Pearson Canada Inc. 3 – 34 Enforcement (cont.) Copyright © 2017 Pearson Canada Inc. 3 – 35 Seizure of Property • Execution process allows seizure and sale • Proceeds shared by creditors – Secured creditors – Preferred creditors • Necessities of life are exempt from seizure • Funds owed to a debtor can be garnished Copyright © 2017 Pearson Canada Inc. 3 – 36 Judicial Remedies Before Judgment • Extraordinary remedies granted only when there is risk that the debtor’s property will be removed from the jurisdiction – bank accounts and other debts – property other than money at risk of being removed or sold • Interim order granted by the court before the actual trial Copyright © 2017 Pearson Canada Inc. 3 – 37 Class Actions • Identifiable class of persons with a common issue • Avoids inconsistent results • Lowers costs for parties and court system • Judgment binds every member of the class Copyright © 2017 Pearson Canada Inc. 3 – 38 Question for Discussion • Consider the phrase, “justice delayed is justice denied”, and apply it to the process of civil litigation in Canada. – Complex procedure of court adjudication – Expense and delay because of an overburdened court system • Do the process and the system serve or defeat the ends of justice? Copyright © 2017 Pearson Canada Inc. 3 – 39 Dealing With Regulatory Bodies • Executive branch of government delegates to public administrators and regulators • Complaints against the actions of regulators and administrators are usually heard by “administrative tribunals” – labour relations boards – human rights commissions – workers’ compensation boards continued… Copyright © 2017 Pearson Canada Inc. 3 – 40 Dealing With Regulatory Bodies (cont.) • Advantages of tribunals: – Decision-making panels usually have specific expertise in the matter – more discretion than judges – more efficient, quicker, and less costly process • Tribunal processes may be reviewed by courts to protect public interest Copyright © 2017 Pearson Canada Inc. 3 – 41 Procedural Fairness in Tribunals • From where did the tribunal derive its authority? • Was the decision-making process fair? • What recourse is there if there has been a failure in jurisdiction or procedure? Copyright © 2017 Pearson Canada Inc. 3 – 42 The Authority of the Decision Maker • Decision makers must be able to point to statutory authority that empowers them to make a decision • Rules of statutory interpretation used to guide reading in harmony with the objective and other provisions of the statute • Statutes must be passed by appropriate level of government and be compliant with Charter Copyright © 2017 Pearson Canada Inc. 3 – 43 The Fairness of the Process • Rules of Natural Justice set basic standard – Fair hearing: complainant must have notice and opportunity to be heard – Decision must be made by persons hearing all evidence – Impartiality: no bias, or appearance of bias in decision makers • Principles of fundamental justice include procedural fairness and natural justice rules as well as anything that offends our basic concepts of justice Copyright © 2017 Pearson Canada Inc. 3 – 44 Reviewing a Decision • Judicial review: not the decision, but the process by which it was made • One of the following must be present: – Invalid statute – Decision or remedy goes beyond power set out in legislation – Errors of law on the record – Failure to follow procedural justice – Abuse of discretionary power Copyright © 2017 Pearson Canada Inc. 3 – 45 Methods of Judicial Review • Prerogative Writs – when a public official or tribunal has breached their duty – Certiorari – nullifies a tribunal’s decision – Prohibition – prohibits a tribunal from proceeding – Mandamus – an order compelling a government to perform its duties • Declaratory Judgment – declaration of the law and providing remedies such as damages or an injunction to enforce that declaration continued … Copyright © 2017 Pearson Canada Inc. 3 – 46 Methods of Judicial Review (cont.) • Privative clauses may constrain judicial reviews: – the courts interpret it to apply only when the board is acting within its jurisdiction – Court retains right to interpret statutory provisions – Also subject also to the Charter • Challenging administrative decisions may be futile and costly Copyright © 2017 Pearson Canada Inc. 3 – 47 Question for Discussion • Administrators who make decisions affecting people must follow minimum standards of procedural fairness. Is this appropriate, or should administrators remain unfettered by these rules so they have discretion to do the right thing in each individual case? Copyright © 2017 Pearson Canada Inc. 3 – 48 Yates, Bereznicki-Korol, Clarke Business Law in Canada, Eleventh Edition Chapter 4: 1-1 Intentional Torts and Torts Impacting Business Copyright © 2017 Pearson Canada Inc. Learning Objectives • When you complete Chapter 4, you should be able to: 1. Describe the role of tort law 2. Distinguish torts from crimes and breaches of contract 3. Identify remedies awarded to redress torts 4. Explain vicarious liability indicating when it may be imposed continued … Copyright © 2017 Pearson Canada Inc. 4-2 Learning Objectives (cont.) 5. Distinguish the torts of assault, battery, and trespass to land, listing the relevant defences 6. Describe three torts that deal with wrongful interference with goods (chattels) 7. Contrast the torts of false imprisonment, malicious prosecution, private and public nuisance, defamation, and injurious falsehood continued … Copyright © 2017 Pearson Canada Inc. 4-3 Learning Objectives (cont.) 8. Identify issues surrounding torts committed in the online environment 9. Delineate the following torts: inducing breach of contract, unlawful interference with economic relations, conspiracy to injure, fraudulent misrepresentation (deceit), passing-off, misuse of confidential information, and intrusion upon seclusion continued… Copyright © 2017 Pearson Canada Inc. 4-4 Learning Objectives (cont.) 10.Detail how privacy is protected in Canada 11.Outline security and privacy concerns arising as a result of computer use Copyright © 2017 Pearson Canada Inc. 4-5 The Nature of Torts • Tort: a social or civil wrong that gives rise to the right to sue and to seek one of several remedies (i.e. injunction, punitive or general damages) • A tort has usually been committed when an intentional or careless act harms another • Injured party may sue for redress • Tort law compensate victims, acts as a deterrent, and educates society • Tort law is continually evolving continued … Copyright © 2017 Pearson Canada Inc. 4-6 The Nature of Torts (cont.) • Crimes are social wrongs that affect society as a whole • Some crimes are also torts – standard of proof in tort law is based on a “balance of probabilities” test • Tortious activity may be intentional or unintentional negligent acts and remedies differ continued… Copyright © 2017 Pearson Canada Inc. 4-7 The Nature of Torts (cont.) • Liability without personal fault • Imposed on employers when they are held liable for torts committed by employees during the course of their employment • Or by statute, such as a vehicle owner being liable for the use of it by another person Copyright © 2017 Pearson Canada Inc. 4-8 Question for Discussion • It is possible for wrongful conduct to be both a tort and a crime. • Is it appropriate for a person who engaged in wrongful conduct to be prosecuted criminally and then to be subject to a civil law suit to compensate the victim for the injuries suffered? Copyright © 2017 Pearson Canada Inc. 4-9 Intentional Torts • Intentional: means that the conduct was willful as opposed to inadvertent • Trespass to Person (Assault and Battery) – Assault: conduct that makes a person think they are about to be struck – Battery: when someone intentionally make unwanted contact with another person – Includes threats – Intent to harm is not required • Courts may award punitive damages Copyright © 2017 Pearson Canada Inc. 4 – 10 Defences • Consent is a defence – Must be informed and voluntary – Physical touching beyond that consented to is battery – Consent can be outlined and limited (i.e. medical treatment • Self-Defence – Reasonable force (not unrestrained violence) to defend self or eject trespassers is permissible Copyright © 2017 Pearson Canada Inc. 4 – 11 Question for Discussion • Is there any tort of assault or battery committed through the conduct of a typical hockey fight? Why do some fights in hockey games result in tort actions, and others do not? Copyright © 2017 Pearson Canada Inc. 4 – 12 Question for Discussion • If you step into a physical altercation to help stop a friend from being subject to battery, it is not self defence. Would you then be committing battery yourself? Copyright © 2017 Pearson Canada Inc. 4 – 13 Trespass to Land • Being on another’s land without authority – Ignorance is not a defence – Permission implied for people acting in professional capacity or for business offering public services • Continuing trespass: permanent incursion onto the property of another – remedied by injunction • Occupier owes a lesser duty of care to trespassers than those there with authority Copyright © 2017 Pearson Canada Inc. 4 – 14 Trespass to Chattels, Conversion, and Detinue • Wrongful interference with goods • Trespass to chattels: – where the plaintiff has possession that is interfered with physically by the defendant • Conversion: – involves one person intentionally appropriating the goods of another person for their own purposes – Includes theft – One may be sued for conversion if buying goods from someone other than owner continued… Copyright © 2017 Pearson Canada Inc. 4 – 15 Trespass to Chattels, Conversion, and Detinue (cont.) • Detinue: – deals with situations where the person is wrongfully retaining the goods – may have come into possession of them legally but refuses to return them – calculation of damages essentially amounts to a forced sale of the goods Copyright © 2017 Pearson Canada Inc. 4 – 16 False Imprisonment • The unlawful and intentional restraint of persons against their will – Personal liberty is totally restrained – Restraint is unlawful • Defence – Citizens arrest: restraint may be justified if persons have done something for which they may be arrested • Poses a significant risk for businesses if customers are detained when suspected of wrongdoing Copyright © 2017 Pearson Canada Inc. 4 – 17 Section 494, CCC • 494(1) Any one may arrest without warrant – (a) a person whom he finds committing an indictable offence; or – (b) a person who, on reasonable grounds, he believes • (i) has committed a criminal offence, and • (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person. continued … Copyright © 2017 Pearson Canada Inc. 4 – 18 Section 494, CCC (cont.) • (2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and – (a) they make the arrest at that time; or – (b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest. • (3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer. Copyright © 2017 Pearson Canada Inc. 4 – 19 Question for Discussion • Do any of you work in a business where employees other than security guards are expected to deal with shoplifting? Does your place of business have procedures that reflect the requirements of Section 494? Copyright © 2017 Pearson Canada Inc. 4 – 20 Malicious Prosecution • Available to victims of improper use of criminal justice system • Conditions: – The defendant in the tort action must have initiated a criminal or quasi-criminal prosecution – Acquittal or prosecution abandoned – Prosecution motivated by malice – No reasonable grounds to have originally proceeded with criminal action Copyright © 2017 Pearson Canada Inc. 4 – 21 Private Nuisance • Private nuisance: – interferes with others’ use of their property – Usually close proximity, but private nuisance can occur at distance (i.e. telephone) – Canada’s Anti-Spam Legislation (CASL) argues that private nuisance may be effective in combating unwanted email • Because nuisance often involves offending substances, it is one of the few common law tools that can be used to enforce environmental protection continued… Copyright © 2017 Pearson Canada Inc. 4 – 22 Private Nuisance (cont.) • Supreme Court of Canada summarized the common law of nuisance thus: – nuisance is a field of liability that focuses on harm suffered rather than on prohibited conduct – Nuisance is defined as unreasonable interference with the use of land – Whether intentional, negligent or non-faulty conduct is of no consequence provided that the harm can be characterized as a nuisance – The interference must be intolerable to an ordinary person – The interference must be substantial Copyright © 2017 Pearson Canada Inc. 4 – 23 Defamation • A detrimental false statement about someone • Must be published or broadcast • It is possible to defame a corporation or a product • To be actionable, it must be clear that it refers to the person suing • Damages for defamation can be substantial • Innuendo can be defamatory – Mistake is not defence Copyright © 2017 Pearson Canada Inc. 4 – 24 Libel and Slander • Slander: spoken defamation • Libel: usually written defamation • Defamation in the media: courts may reduce damages to plaintiffs where material was published in good faith • Defamation on the Internet: libel if broadcast • Size of audience is relevant to injury suffered and award Copyright © 2017 Pearson Canada Inc. 4 – 25 Defences • Defences to a defamation action: – Truth (defence of justification) – Absolute Privilege – Qualified Privilege – Fair Comment – Public Interest Responsible Journalism Copyright © 2017 Pearson Canada Inc. 4 – 26 Product Defamation (Injurious Falsehood) • Injurious falsehood: addresses attacks on the reputation of another’s product or business • Trade slander (or product defamation) is distinct from the tort of defamation – Deals with the reputation and value of a person’s property; – It addresses attacks on the quality of the product – Or upon the title held by another Copyright © 2017 Pearson Canada Inc. 4 – 27 Successfully Establishing a Tort Claim Copyright © 2017 Pearson Canada Inc. 4 – 28 Other Torts Impacting Business • Inducing breach of contract: – Commonly, luring people to breach their current employment or supply contracts • Unlawful interference with economic relations: – Regardless of contract, unlawful conduct associated with the complaint, such as bribery or defamation – intended to and resulting in harm • Intimidation: – threat of violence or some other illegal activity forcing a party to do something that harms it continued … Copyright © 2017 Pearson Canada Inc. 4 – 29 Other Torts Impacting Business (cont.) • Intentional infliction of mental suffering: – Also related to threats and harassment – Example: harassment and the threat of physical violence to encourage repayment of a loan • Deceit (Fraudulent Misrepresentation): – involves the fraudulent and intentional misleading of another person causing damage • Conspiracy to injure: – takes place where two or more persons act together using unlawful means to injure the business interests of another continued… Copyright © 2017 Pearson Canada Inc. 4 – 30 Other Torts Impacting Business (cont.) • Passing off – Knockoffs • Misuse of Confidential Information – Breach of confidence Copyright © 2017 Pearson Canada Inc. 4 – 31 Privacy • Invasion of privacy: takes the form of a physical intrusion, surveillance, misuse of an image or name, or access to information • Privacy protection provided by statute law – Provincial privacy statutes • Courts reluctant to recognize invasion of privacy as a tort – parties have tried to characterize the action as another kind of tort continued… Copyright © 2017 Pearson Canada Inc. 4 – 32 Privacy (cont.) • Internet has heightened concerns over privacy and confidentiality • Private data are often sold for profit • Federal Privacy Act regulates government collection and use of private information • Personal Information Protection and Electronic Documents Act (PIPEDA) – Regulates collection and use of private information – Provides a model code Copyright © 2017 Pearson Canada Inc. 4 – 33 Evolution of Tort Law • Constant evolution of the law • The tort of intrusion upon seclusion • The tort of spoliation – Deliberately spoiled or destroyed evidence Copyright © 2017 Pearson Canada Inc. 4 – 34 Online Torts • Regulation of internet poses some unique challenges – How to protect the vast amounts of personal and business data – Identity and location of the person or business being dealt with are uncertain – Issues of jurisdiction Copyright © 2017 Pearson Canada Inc. 4 – 35 Question for Discussion • Tort law is designed to provide compensation for injury or damages suffered. Is it appropriate for the civil court to award damages where no loss has been suffered by the person suing? For example, in a case of trespass. Copyright © 2017 Pearson Canada Inc. 4 – 36
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