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GMGT: 3300 Comm Law Midterm > Courts, Legislature, Delegate Bodies > Flashcards

Courts, Legislature, Delegate Bodies Flashcards

1
Q

3 Institutions that create law

A

Courts, Legislature and Delegate Bodies

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2
Q
  1. Courts what are they ?
  2. judges 3-main responsibilities
A

Dispute resolution facilities to resolve cases, trials and settlements, create common law
Adjudication, determine facts, and apply legal principles to create law

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3
Q

Courts:
What do people look to it for?
what do they create?
2 Primary function of the court?
Most unreliable form of evidence?

A

Look to courts for guidance and settlement/remedy
legal principles (primary creator of law in society)
Dispute resolution and create common law
Eye witness

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4
Q

Courts (similar institutions):
What are Arbitrators and how do they get paid

A

Help opposing parties settle disputes. Always get fee in advance as loser won’t be happy

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5
Q

Courts (similar institutions):
Mediator

A

appointed by statue or agreement, suggest a solution

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6
Q

Courts (similar institutions):
Conciliation

A

Gets party talking but can’t suggest anything

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7
Q

Courts:
Settlement

A

disputes resolved but not by the courts but by money/liability but parties pay attention to methods resolved by the courts

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8
Q

Courts:
Stare Decisis

A

Verdict decided on basis of previous principles (precedence)

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9
Q

Plantiff

A

one suing, goes to court to fix a wrong or earn remedy

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10
Q

remedy

A

compensation or money for damages etc

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11
Q

Courts:
what legal principle does a judge create

A

ratio decidendi

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12
Q

Courts:
ratio decidendi

A

narrowest and necessary legal principle applied upon which the decision was based (basic element of principle of law)

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13
Q

Courts:
Principles are called (2 names of law )and what is extracted when analyzing the case

A

Common law or judge made and the ratio decidendi is extracted

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14
Q

Courts:
2 types of cases

A

Case regarding legislation
Judge Made/Common Law

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15
Q

What is Case regarding legislation

A

interpreting legislative, discern intent of legislation and law effect formulated by legislation

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16
Q

Case regarding legislation:
What are Statues

A

written enactment of legislative body
laws created by legislative body

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17
Q

Case regarding legislation: Why interpret the statutes

A

legislation aren’t clear or statues not well defined etc what does “possession” mean so court defines

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18
Q

Case regarding legislation: Family Property Act

A

include conjugal (living as family) <- cohabitation w/ min 3 year, property split up

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19
Q

Case regarding legislation: Intestate Succession Act

A

Die without a will, property divided amongst family members. Will is probated by a lawyer

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20
Q

Judge Made/Common Law

A

Court does not interpret law statute but rather declares law in areas untouched by legislation with authority. Law is establish by courts and judges

21
Q

Interpretation of Statute 3 Steps

A
  1. Plain Meaning: Definition
  2. Mischief Approach: Context of statute -> specific purpose or attempt
  3. Golden Rule: start with 1 but if absurd outcome then use 2
22
Q

Judgement

A

publications and written documents contained in case reports

23
Q

Common Law 2 categories

A

Common law courts and law of equity courts

24
Q

Court of Chancery/Equity (Fairness)

A

Statues unable to hold justice, remedy or settlement in dispute outcome is not enough under common law

25
Q

What rules over another for equity and common law principles and why?

A

Equity principles overruled common law principles because equity principles evolved of lack of common law principles

26
Q

Who created Judicature Act and what is it (blique)

A

created by Blique house and it merged the two courts (equity and common law) to one court but simultaneously dispenses both common law principles and equity law principles

27
Q

Legislatures produce laws known as (2)
how many legislatures in Canada ?

A

statutes or acts
11 legislatures in canada

28
Q

statute/act of parliament has been defined in english law as…

A

a pronouncement (declare formally) by sovereign in parliament

29
Q

Parliament

A
  • means highest legislature
30
Q

Sovereign

A
  • means ruler of law
31
Q

In UK / Canada (Statute changes)

A

made by the king (monarch) with advice and consent of House of Parliament and Commons to declare or change law

32
Q

Mutatis Mutandis

A

necessary changes being made to the law, statutes of Canadian Parliament and provincial legislature

33
Q

British Bicameral model

A

parliament with two chambers -> upper and lower house

34
Q

United Kingdom
1. Monarch
2. Upper House
3. Lower House

A
  1. King Charles the Third
  2. House of the lords
  3. House of Commons, elected assembly
35
Q

Canada
1. Monarch
2. Upper House
3. Lower House

A
  1. King Charles the Third and government general
  2. Senate -> completely appointed
  3. House of Commons MP’s - Member of parliament
36
Q

Manitoba
1. Monarch
2. Upper House
3. Lower House

A
  1. King Charles the Third and lieutenant government
  2. Doesn’t exist
  3. Legislative Assembly, MLA’s we elect
37
Q

America
1. Monarch
2. Upper House
3. Lower House

A
  1. President
  2. Senate (two from each state)
  3. House of representatives based on populations (congress)
38
Q

What do Delegate Bodes produce

A

Subordinate legislation

39
Q

Delegate bodies definition

A

legislation made by a person or body, other than the sovereign in parliament, through virtue powers conferred by statute/legislation, which itself is made under statutory powers

40
Q

Why create delegate bodies and examples in Manitoba

A

legislature doesn’t have time to deal with every issue in a city etc Winnipeg City Council, Municipal Act/Police, School Boards

41
Q

Describe Influence of Delegate bodies

A

influence overestimated, constitutes by far the largest number of laws

42
Q

Describe Effect of Delegate bodies

A

regulates, organizes and directs social conduct by implementation of general legislative policies embodied in statues

43
Q

Subordinate legislation alternative names

A

regulation, orders, rules, bylaws or ordinances

44
Q

2 Principals of Administrative Law involving delegate bodies and delegates

A
  1. Delegate bodies can only create legislation within the jurisdiction given by its statutes
  2. Delegates can’t delegate (delagatus non potest delagare)
45
Q

Ultra Vires

A

Ultra vires - beyond power/jurisdiction is void (no effect)

46
Q
  1. Delegates can’t delegate (delagatus non potest delagare)
A

Cannot further delegate power etc fire department delegate to police unless legislation allows

47
Q
  1. What was the most significant institution creating law in 20th century?
  2. In early 20th century, delegate bodies exploded and roles of court changed, what changed and what was the famous case?
A
  1. courts and by the judges - when disputes arises so reactive not proactive
  2. Legislatures acted proactively so courts not restricted (Estor Brown) Courts vs legislature
48
Q

Why did Legislature become Proactive 3 reasons

A
  1. In order for courts to make law, must wait for disputes to arise - judges conservative, uneducated
  2. Previously no great demand for laws until industrial revolution, legislative process was difficult/expensive
  3. society finally had enough wealth to support ongoing legislature function
49
Q

Industrialization (Industrial Revolution) and Proactive Law (3-4)

A

Society was richer overall
created new problems to be solved
allow legislation to supply power to courts
created middle class that demanded changes to occur
parliament supremacy over judicial

GMGT: 3300 Comm Law Midterm (10 decks)

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