Final Exam Flashcards
Lecture #2 – Doctrine of precedent
• All cases should be treated alike (predictability, consistency, equal treatment)
• Stare decisis: to stand by the previous decisions (collective wisdom and common sense)
Doctrine of Precedent in Canada
• Lower court must follow relevant precedent created by a higher court within jurisdiction
• The higher the court creating the precedent, the more valued the decisions (SCC in Canada)
Various ways precedents can be treated by the courts
• Followed (similar facts, court follows precedent) ex. Precedent [Donogue vs Stevenson] Responding case [Grant v Australian Knitting Mills]
• Distinguished (slight material difference, distinguishing the situation of precedent from the instant case) ex. Precedent [Bridges v Hawkesworth] Responding [South Stafford Water Company v Sharman]
• Overruled (Higher court declares precedent in lower court wrong) ex. Precedent [Robertson and Rosetanni v The Queen] Responding [R v Big M Drug Mart]
Lecture #6 – Unequal Barganning Power
Legal capacity
• Minors – legally incapable of making binding contract, usually voidable at the option of the minor. 2 exceptions (contracts for necessaries or beneficial contacts of service)
• Mental incapacity – illness/alcohol/drugs unable to understand consequences, other party aware of state
Duress
• Threatened, force or coerced – duress to the person, to goods or property, economic duress [Stott v Merrit Investment Corp] [Greater Fredericton Airport v NAV Canada] exercise of pressure, no practical alternative, not actual consent
Undue Influence
• One party exercised pressure or pressure from a relationship (manipulation)
o Actual pressure – party actually exerted unfair influence, burden of proof on alleging party
o Presumed pressure – special relationship involving trust, presumption of undue influence. Burden of proof on party denying to rebut (independent legal advice) [Bank of Montreal v Dugiud]
Unconscionability
• Party takes advantage of weakness to enter unfair contract [Norberg v Wynrib]
o 1) Proof of inequality (poorly educate, language) overwhelming imbalance of power
o 2) Proof of improvident bargain – grossly unfair [Downer v Pitcher]
• Four step process
o a) grossly unfair and improvident transaction
o b) victim’s lack of independent legal/suitable advice
o c) overwhelming imbalance in bargaining power
o d) other party’s knowingly taking advantage of vulnerability
Alberta [Cain v Clarica Life Insurance] or Ontario [Titius v William F Cooke]
Other Contract Defects
• 1) Illegality a) illegal by legislation b) contrary to public policy
• 2) Writing as a requirement – statues of fraud
Lecture #7 – Termination+Remedies (Doctrine of Frustration+Damages)
Termination – by performance, agreement, breach of contract, by frustration
Termination by Frustration
• A) event unforeseen, B) not fault of parties, C) purpose of contract impossible [Davis contractors Ltd v Fareham Urban Distrct]
• Typical frustration cases
o Music hall cases – basis/essence destructed [Taylor v Caldwell]
o Coronation cases – purpose no longer exists [Krell v Henry]
o Government acts – change in law/war = fundamental change [Capital quality home Ltd v Colwyn Construction]
• Typical no-frustration cases
o Defeated part is not understood by both parties as only purpose of contract [Herne Bay Steam Boat Co v Hutton] [Claude Neon General v Sing]
o Possible to perform but with hardship/additional expense ‘suez canal’ [Tsakiroglou v Nobel Thorl]
o Economic events (inflation or strikes) [Canadian Gov Merchant Marine Ltd v Canadian Trading]
• Force Majeure Clauses – relives liability of non performance due to risk of unforeseen events [Atlantic Paper Stock Ltd v st Anne-Nackawic Pulp+Paper]
• Consequences of Frustration – common law “loss lay where it fell” [Chandler v Webster], legislation : frustrated contracts act – a) monies paid recoverable b) responsible expenses incurred set off c) benefits conferred claimable
Remedies
• Measure of damages – expectation loss (loss of profits) or reliance loss (expenses incurred)
• Test of remoteness – 2 limb rule [Hadley v Baxendale] a) arisen naturally b) in contemplation of both parties
• Recovery of non-pecuniary losses
o Pecuniary losses (financial terms, normally recoverable)
o Non-pecuniary losses (rarely recoverable, not if contract purpose is to provide pleasure and peace of mind) [Jarvis v Swans Tour] [Fidler v Sun Life Assurance Company of Canada]
o Rules regarding non-pecuniary damages A) object of contract was to secure psychological benefit [Hadley v Baxendale] B) sufficient degree of suffering to warrant compensation
• Duty to Mitigate – party who suffered breach must take steps to minimize losses
• Liquidated damages+punitive damages
o Liquidated damages – fixed amount in contract, genuine pre-estimation
o Punitive damages – exceptional only awarded for malicious/oppressive behaviour [White v Pilot Insurance Co]
Lecture #8 Tort Law (I)-Introduction
Tort law vs contract law ex. In a car accident injured passenger: action in both tort and contract, injured pedestrian: action in tort. Ex: [university of Regina v Pettick]
Damages in Tort
• Pecuniary damages – measured in monetary form (cost of loss of future care, income or special damages)
• Non-pecuniary damages – for pain, suffering, loss of joy/life expectancy [Andrew v Grand Toy Alberta]
• Punitive damages – to punish D’s outrageous behaviour [Liebeck v Mcdonalds] [Bogle v Mcdonalds]
• Aggravated Damages – to compensate for distress/humiliation caused by D’s behaviour [Runcer v Gould] [Moore v Bertuzzi]
Lecture #9 Tort Law (II) – Negligence
• Duty of care
o [Donogue v Stevenson] – who is my neighbour? Person who is so closely and directly related
o To prove negligence:
Whether D owes a duty of care to P? A) is damage foreseeable? Foreseeability [Bourhill v Young], B) is there a close and direct relationship? Proximity – drowning example [Hill v Hamilton Wentworth], C) Policy Considerations outside the relationship that could negate imposing duty of care? [Childs v Desmoreaux] [McIntyre v Grigg] – floodgate of litigations ‘liability expose of an indeterminant amount for an indeterminant time to an indeterminant class’
Whether D is in breach of duty of care? Reasonable person test ‘ordinary prudence’ [Ward v Tesco Stores] [Tedstone v Bourne Leisure] [Robertson v Adigibite]
• Causation
o If it can be proven that P’s injury would not have occurred “but for” D’s negligent conduct, causal connection established [Cork v Kirby Maclean Ltd]
o A new Intervening act – whether 2nd act is considered within D’s responsibility or whether act should be seen as a new intervening act severing the causal connection [Smith v Littlewoods Organization]
• Remoteness
o Whether harm suffered was too unrelated [Mustapha v Culligan of Canada Ltd]
o The thin skull rule – as long as the type of injury is foreseeable, D is liable even if injuries are unexpectedly severe [Athey v Leonati][Smith v Leech Brain co]
• Défenses
o Contributory negligence – P contributed to own injury, share of responsibility [Kralik v Seymour]
o Voluntary Assumption of Risk – person knowingly accepts risks, complete defense. [Ellison v Rogers][Agar v Canning]
Lecture #10 – Tort Law (III) – Vicarious Liability
Principle under which the employer is liable for the tortious action of another employee [B.K.L v British Columbia]
• How to establish vicarious liability, 1st the tortfeasor must be an employee 2nd whether the tort is committed within the scope of employment
o Sufficient Connection Test – wrongful act sufficiently related, connection between creation/enhancement of risk [Bazely v Curry]
• Typical situations that might attract vicarious liability
o A) an employee acts expressly prohibited by the employer [Twine v Beans express][Rosev Plenty]
o B) Intentional torts or crimes [Bazely v Curry] [B.E v Order of Oblates of Mary Immaculate] {Gil v Wang] [British Columbia Ferry Corp v Invicta Security] [Evans v Wilson+BONS] [WM Morrison Supermarkets PLC v Various Taimants]
o C) The detour cases déviations form the route authorized by employer -> 1km detour still VL ->hospital visit in opposite direct not VL -> lunch stop still VLs
Lecture #11 – Tort Law (IV) – Occupier’s Liability
Occupiers liability to visitor – duty of care – to the trespasser – duty of humanity
Law regulating occupier’s Liabilty – OLA (AB, ON, PEI, MB, NS, BC), NB – general standard of negligence and everywhere else for follows common law
• A common duty of care
o Who is the occupier? Person who has immediate supervision and control, and the power to admit or exclude entry [Mackay v Starbucks] – not always ownership.
o Who is a visitor? Those who have express/implied permission. Special visitors, child visitors (higher degree of care, skilled visitors (guard to expected risks)
o Reasonably safe in circumstances (not responsible for all harm) i) Slips and falls – to discharge the liability 1st policies of maintenance 2nd proof of following those [Howden v Wesfair] [Garofalo v Canada Safeway] ii) ice and snow cases – same policies [Perrett v Port Moody] [Sheikhani v Ontario Niagara]. Homeowner’s duty to clear snow – should take steps to make it safe [Waldick v Malcom] especially if it is foreseeable to have visitors, not responsible for municapal sidewalks [Der v Zhao]
o Escaping breach by warning - adequate, should be sufficient to enable visitors to be reasonable safe
o Defences – voluntary assumption of risk (shortcut), exclusion of liability (notice on board), contributory negligence (slipping and falling on unsafe stairs while drunk0
o Independent Contractor – occupier must act responsibly – 1st contractor is competent 2nd work should be done properly [Hasedine v Dow+Son Ltd][Woodward v Mayor of Hastings]
• A duty of common humanity
o Trespassers – those who do not have permission, or come as a visitors but become a tresspasser by going onto restricted parts of premises/doing something outside of permission [Brisith Railway Board v Herrington] [Veinot v Kerr-Addision Mines Ltd]
o Four factors to consider occupier in breach of common humanity [Panette v McGuiness Co] a) gravity/likelihood of probable injury, b) character of intrusion by tresspasser, c) nature of place where tresspass occurs, d) knowledge which D has, or ought to have, e) SCC cost and predictability of procautions
