Final Exam - Focus Material Flashcards
(137 cards)
1
Q
What are the first things you need to start an action?
A
A statement of claim
2
Q
What does a defence respond to a with?
A
statement of defence, and depending on the circumstances a counterclaim.
3
Q
How to manage risk?
A
Risk management is the process of identifying, evaluating, and responding to the possibility of harmful events.
4
Q
What is protected by Charter Rights?
A
Fundamental freedoms, democratic rights, mobility rights, equality rights, official languages.
5
Q
What isn’t protected by Charter Rights?
A
economic and land
6
Q
What is a statement of claim?
A
A document in which the plaintiff outlines the nature of the complaint. It states the facts that the plaintiff intends to rely upon and the remedy that it wants to receive.
7
Q
What is a statement of defence?
A
A document in which the defendant sets out their version of the facts and indicates how they intend to deny the claim.
8
Q
What is a counterclaim?
A
A claim that the defendant makes against the plaintiff.
9
Q
Can the plaintiff respond to defences pleadings and possible counterclaim? What with?
A
Yes, with a reply if they want to dispute anything in the statement of defence.
10
Q
What is a demand for particulars?
A
It requires the other side to provide additional information. This is used after receiving basic pleadings.
11
Q
what is battery? vs what is assault?
A
assault involves the threat of harm or force while battery involves actually inflicting physical force or harm.
12
Q
What is the difference between a tort vs. a crime?
A
A tort occurs when a person breaks a private obligation, a crime occurs if a person breaks a public obligation. A public obligation is owed to society as a whole, rather than to any particular person.
13
Q
Who would be the plaintiff in a tort?
A
a private person
14
Q
What is strict liability?
A
A type of tort that occurs when a person does something wrong without intending to do so and without acting carelessly. it is enough that the defendant was responsible for the situation.
15
Q
What are situations of strict liability?
A
Animals, Ryland v. Fletcher
16
Q
What is vicarious liability?
A
occurs when one person is held liable for a tort that was committed by another person.
17
Q
What will you be more careful with due to vicarious liability?
A
It acts as a deterrence by encouraging employers to avoid unusually hazardous activities and to hire the best people available.
18
Q
what is a chattel?
A
A moveable form of property.
19
Q
What is an intentional interference to chattel?
A
an intentional interference with another person’s lawful possession of personal property
20
Q
What are the three kinds of intentional interference to chattel?
A
Trespass to chattels, conversion and detinue.
21
Q
What is detinue?
A
detinue is the failure to return chattels to the plaintiff.
22
Q
What are the remedies to detinue?
A
compensation for loss or return of chattel.
23
Q
What is trespass to chattels?
A
occurs when the defendant interferes with plaintiff’s chattels. (Damages, destroys or uses plaintiff’s goods)
24
Q
What is the remedy to trespass to chattels?
A
compensation
25
What is trespass to land?
occurs when the defendant improperly interferes with the plaintiff's land.
26
What is the remedy for trespass to land?
compensation for the harm that it caused.
27
What is the giant carrot theory?
The idea that the landholders rights extend from the centre of the Earth and up through the skies.
28
When are nominal damages and punitive damages awarded?
Nominal damages if there was no loss, or punitive damages if the defendant's conduct was shockingly bad.
29
When would a judge grant an injunction for trespass to land?
A judge will factor the defendant's motivation, the extent to which monetary damages would adequately protect the plaintiff, and the costs associated with removing the trespass.
30
What are the business torts?
conspiracy, intimidation, interference with contractual relations and the unlawful means tort.
31
what is conspiracy tort?
occurs when two or more defendants agree to act together to cause the plaintiff to suffer a financial loss.
32
what are the two types of conspiracy?
Lawful Act Conspiracy and unlawful act conspiracy
33
what is lawful act conspiracy?
occurs when two or more people cooperate on a course of conduct that, by itself, is perfectly lawful.
34
when is lawful act conspiracy liability imposed?
if the judge is persuaded that they came together for the primary purpose of hurting the plaintiff.
35
what is unlawful act conspiracy?
The defendants conspired to commit an act that was unlawful in itself.
36
How do you establish unlawful act conspiracy?
The court has to satisfy that the defendants should have know that their actions might hurt the plaintiff.
37
What is intimidation (there are two kinds)?
Intimidation occurs when the plaintiff suffers a loss as a result of the defendants threat to commit an unlawful act against either the plaintiff or a third party.
38
What are the two types of intimidation?
Two-party intimidation and three-party intimidation. Two-party occurs when the defendant directly coerces the plaintiff into suffering a loss. Third-party occurs when the defendant coerces a third party into acting in a way that hurts the plaintiff.
39
What are the three requirements of for the tort of intimidation?
Unlawful act, effective, intention
40
what are the two elements to prove intimidation?
41
What is interference of contractual relations?
occurs when the defendant disrupts a contract that exists between the plaintiff and a third party.
42
What is defamation?
occurs when the defendant makes a false statement that could lead a reasonable person to have a lower opinion of the plaintiff.
43
What are the elements you need to prove defamation?
Reasonable person (would a reasonable person believe that the defendant was referring to the plaintiff), Living person (the tort of defamation is limited to living persons humans and corporations),
44
When is a loss remote?
if it would be unfair to hold the defendant responsible for it.
45
what is the remoteness question that a judge will ask?
Would a reasonable person in the defendant's position have realised that a particular activity might have caused harm to the plaintiff?
46
What is mitigation?
occurs when the plaintiff takes steps to minimise the losses that result from the defendant's tort.
47
what are the four aspects of the rules on mitigation?
Reasonable steps (did the plaintiff take reasonable steps to mitigate a loss), no duty, extent of loss, cost of mitigation (the plaintiff can recover the costs associated with mitigation.
48
what is a nuisance?
the defendant causes an unreasonable interference with the plaintiff's land.
49
What factors are important in understanding nuisance?
nature of neighbourhood, time of day, intensity and duration, social utility and motivation
50
What is the basis of donoghue v stevenson?
P. Donoghue visited a cafe with a friend. Her friend bought her a bottle of ginger beer that the D. had manufactured. The bottle had a snail in it. The issue was does the manufacturer owe a duty of care to a person who consumes but did not personally buy a particular product.
51
Why is the Donoghue v Stevenson verdict important for business people?
1. General test it created a test for determining the existence of a duty of care.
2. Consumer Claims it establised that a manufacturer can be held liable to any consumer. Manufacturers therefore have to worry to only about the people that purchase their products.
52
What is the test that Donoghue v Stevenson developed?
Precedent (the judge will first ask whether or not the duty of care question has already been answered for the particular type of case that is being litigated.
New Duty If the duty to care question has not already been answered for the particular type of case, then it will be necessary to ask three question in order to determine whether or not a duty of care should exist
Reasonable Forseeability was it reasonably forseeable that the plaintiff could be injured by the defendant's carelessness?
Proximity Did the parties share a relationship of sufficient proximity?
Policy If an injury was reasonably foreseeable, and if the parties shared a relationship of sufficient proximity, then a duty of care presumably will exist.
53
Are special allowances made for novices?
No, but even inexperienced professionals must conform to the standard of a reasonably competent and experienced professional.
54
When you are a specialist is there a raised professional standard?
Yes.
55
What is the difference between consideration versus past consideration?
past consideration consists of something that a party did prior to the contemplation of a contract. It cannot be given in exchange for the party's consideration.
56
what is sufficient versus adequate consideration?
sufficient consideration consists of almost everything that the law considers valuable. While, adequate consideration has essentially the same value as the consideration for which it is exchanged. Consideration must be sufficient, but does not have to be adequate.
57
When do you need a seal?
It is used in place of consideration
58
Who would provide a seal?
The party that is using it in place of consideration.
59
What is a forbearance to sue?
Is a promise to not pursue a lawsuit.
60
What are the three types of misrepresentation?
Fraudulent misrepresentation, negligent misrepresentation, innocent misrepresentation
61
What are the four elements misrepresentation?
False or untrue, positive statement, of a past or existing fact and that was intended to, and actually did, induce the creation of a contract.
62
What type of findings would support an innocent misrepresentation?
63
"an organisation can always be sued in the same way as person" is this true? Who are the three categories?
No, corporations can, clubs and associations cannot they have to be sued individually, and the crown must give permission to be sued.
64
What is an examination for discovery?
Examinations for discovery is a process in which the parties ask each other questions in order to obtain information about their case. Although discoveries occur outside of court, they are conducted under oath and the answers that they generate may be used as evidence during the trial.
65
Why are examination for discovery useful?
While discoveries may be time-consuming, they are cheaper and more flexible than court proceedings. Furthermore, by revealing the strengths and weaknesses of a claim, they may indicate which side is likely to lose if the case goes to trial. If so, thy may lead the parties toagree on an out-of-court settlement
66
To whom is the obligation owed in tort law and in criminal law? Identify the person or party entitled to complain in court about a tort or a crime?
The primary obligation in tort law is owed to a particular private person. If that primary obligation is broken, then the tortfeasor maybe sued by the person to whom the duty was owed. In contrast, the primary obligation underlying a crime is owed to society as a whole. That is true even if, as usually occurs, the commission of a crime hurts a particular person. Because the criminal obligation is public, the case is prosecuted not by the personal victim, but rather by the Crown, on behalf of society as a whole
67
Is it ever possible for the same set of events to be both a tort and a crime?
yes, a person who punches another is not only liable for the tort of battery, but also subject to criminal prosecution for the crime of assault. The fact that that person has already been held responsible in one area of law does not provide an immunity under the other head of law.
68
on what grounds can vicarious liability be justified?
It serves the compensatory function of tort law because it allows the plaintiff to claim damages from both an employee (who may not have any money) and an employer (which is more likely to have money or, at least, liability insurance).
deterrence function of tort law by providing employers with an incentive to avoid unusually hazardous activities and to hire the best people available.
As a matter of fairness, it may be appropriate to require a business to take responsibility for the losses that its activities create, even if those losses are caused by employees who misbehave.
69
When will an employer be held vicariously liable for torts committed by their employees? When will an employer be held vicariously liable for torts committed by their independent contractors?
An employer will be held vicariously liable for acts that it authorized an employee to do and other closely connected acts. It will not, however, be held vicariously liable if an employee commits a tort completely outside the scope of employment. An employer will not be held vicariously liable for the torts committed by its independent contractors.
70
How can you tell the difference between a independent contractor and an employee?
the employer controls what is done, when it is done, how it is done, and where it is done
the worker uses the employer’s equipment and premises
the worker is paid a regular wage or salary, as opposed to a lump sum at the end of each project,
the worker is integrated into the employer’s business and not in business for him.
71
What is the one exception to remoteness?
intentional torts - they do not deserve leniency.
72
What is the one feature that contracts and torts have in common for compensation?
Mitigation and remoteness
73
What is the difference between damages and injunctions?
damages require the defendant to pay a certain amount of money to the plaintiff. Compensatory damages are intended to provide a monetary substitute for the thing the plaintiff lost. An injunction requires the defendant to do something other than pay money.
74
Can a court give both damages and injunctions? Why would they do so?
Yes, damages for past losses and injunction to prevent future losses.
75
what is trespass to land?
occurs when the defendant improperly interferes with land that the plaintiff posses.
76
when will a judge order an injunction for trespass to land?
If the trespass is continuous, and after weighing the following factors;
1. motivation of the defendant
2. extent to which monetary damages would protect the plaintiff
3. const associated with removing the trespass
77
What is the tort of conversion?
occurs when the defendant intentionally interferes with chattels that the plaintiff possesses in so serious a manner as to warrant a forced sale
78
What are the special dangers related to conversion when a business person purchases chattels?
As a matter of risk management, business people should be aware that the tort of conversion can be committed simply by exercising control over property, even if they thought they were entitled todo so. Business people therefore should make every reasonable effort to ensure that the person selling the goods to them was actually entitled to do so. Unfortunately, even that may not be enough to protect business people from liability. Because the courts want to strongly protect the plaintiff’s property rights from interference, the tort of conversion is “strict.” That means that liability may be imposed even if the defendant did not know (and had no way of knowing) that it was improperly interfering with the plaintiff’s property
79
what factors do the courts look at to decide if force sale is necessary (conversion)?
the extent to which the defendant exercised ownership or control over the chattel the extent to which the defendant intended to assert a right that was inconsistent with the plaintiff’s right to the property
the duration of the defendant’s interference
the expense and inconvenience caused to the plaintiff
80
when would something be a negligent misrepresentation?
If the defendant carelessly fails to realize that their representation is false.
81
What would support that the type of misrepresentation was innocent?
The representer had no reason to know that what they said was false.
82
Is silence ever a misrepresentation?
Yes
83
What some examples of when silence would be misrepresentation?
if silence is a half-truth, when the contract requires a duty of utmost good faith, when a statuary provision requires disclosure, if the situation has changed since the last time you spoke.
84
what are the types of contractual defects?
incapacity, unfairness during bargaining, mistake, absence of writing, illegality
85
What are the three types of unfair bargaining?
duress, undue influence, unconsciousable
86
What is the age majority in Canada?
Every province and territory has legislation that sets the age of majority. I most places it is 18 and in others it is 19.
87
what is an indian band?
defined by the indian act is a body of indigenous peoples whose land and money are held by the crown.
88
What is the rules with contracts and indian bands?
Through their councils they have many of the same powers of a person including the power to enter into contracts. It must be approved by a majority of the councilors.
89
What are the restrictions for indigenous peoples and contracts?
property on reserves cannot be used as security for credit transactions, nor can it be transferred to another member of the band without permission from the crown.
90
what is the difference between frustrations and self induced impossibilities?
A contract becomes frustrated when it becomes impossible to perform or when the circumstances change so much that performance would be something much different from what the parties initially expected. While self induced impossibility is caused by your actions. It is within your control.
91
What are the obligations that the debtor owes to the creditor?
primary obligation of locating the creditor and tendering payment, even if the creditor has not asked for it. The method of tendering payment must be reasonable. It only needs to be made once through.
91
what is a contract of utmost good faith?
a minimum standard, legally obliging all parties entering a contract to act honestly and not mislead or withhold critical information from one another. ex. insurance
92
what are the three types of conditions when it comes to contracts?
condition subsequent, true condition precendent, condition precedent
93
What is condition subsequent?
A contractual term that states that the agreement will be terminated if a certain event occurs. ex a concert that will cancelled if there is rain.
94
What is a true condition precedent?
A contractual term that states that an agreement will come into existence only if and when a certain events happen. ex weapon that is currently illegal sales
95
what is a condition precendent?
refers to a contractual term that states that while a contract is formed immediately it does not have to be performed unless and until a certain event occurs. common in sales of land.
96
how can a partnership be dissolved?
one partner gives notice of termination to the others, a partner dies or becomes insolvent, the partnership is set up for a specific purpose or amount of time.
97
what can shareholders do and not do?
for most purposes they must act collectively, they do not participate in management, they do not incur liability for the corporations. They do elect a board of directors.
98
What is the test to determine partnership?
A partner cannot be employed by the partnership
All partners are held liable for the obligations of the business.
the existence of an enduring relationship.
if they associate with being a partner in title.
sharing profits
jointly owning property or contributing money or property to carry business
participating in management, ex. signing authority bank accounts.
99
what is a sole propiertership?
simplest form of business organisation, comes into existence when a person starts to carry on business on their own, without adopting any other form of business organisations such as a corporation.
100
what is the main disadvantage of sole proprietorship?
unlimited personal liability
101
what is unlimited personal liability?
it means that third parties may take all the sole proprietors personal assets not just those of the business to satisfy the business's obligations.
102
what are the legal requirements for sole proprietorship?
you would not have to register if you just used your name but if you used something else you will need to register in every province and territory in which the sole proprietorship carries business. business license.
103
What is a business licence and which forms of business need it?
It is government permission to operate a certain kind of business. All forms of business require it.
104
What is a general partnership?
A form of business organisation that comes into existence when two or more people carry on business together with a view to a profit.
105
What kind of liability does general partnerships have?
unlimited personal liability
106
what are the main filings needed to incorporate your business?
articles of incorporation, a name search report on the proposed name of the corporation and the fee
107
what is the articles of incorporation?
sets out the fundamental characteristics of the corporation: its name, the class and number of shares authorised to be issued, the number of directors, any restriction on transferring shares and any restriction on the business that the corporation may conduct.
108
what is the tort of intimidation?
occurs when the plaintiff suffers a loss asa result of the defendant’s threat to commit an unlawful act against either the plaintiff or a third party.
109
"The unlawful means tort is parasitic" explain the extent to which that statement is true.
To win, the plaintiff must latch onto a tort claim that the third party has against the defendant.
110
what is unlawful means tort?
occurs if the defendant committed an unlawful act against a third party with the intention of causing the plaintiff to suffer an economic loss. ex. firing a cannon at a coneo so they wouldnt want to do business with the defendent.
111
what are the requirements to prove unlawful means tort?
intention and actionable wrong (the plaintiff can sue the defendant only if the third party can sue the defendant)
112
why is publication so critically important for the tort of defamation?
The critical point in the tort is that it can lower the opinion of the plaintiff by other people. Publication occurs when the defendant conveys the unfavourable statements about the plaintiff to a third party.
113
What are the three requirements to prove defamation?
False statement, malice, loss
114
what is the only time that nuisance occurs?
when it is unreasonable
115
what is the most important factor of determining nuisance?
the nature of the interference
116
what are the factors that determine interference with contractual relations?
Defendant knows of the contract
Defendant intends for the third party to breach k
Defendant actually causes third party to breach k
plaintiff suffers loss
117
Does canada have a separate tort for product liability? if not what would you use?
No, if you are injured by a product then you must satisfy the usual elements of the tort of negligence .
118
In terms of breach of the standard of care, a manufacturer act carelessly in three ways. What are they?
Manufacture (ex. snail in ginger beer), design (drug with side effect), warning (car in inclosed space)
119
what is a forbearance agreement?
is a promise by the plaintiff not to pursue a lawsuit in exchange for the defendant’s agreement to pay less money than it allegedly owed.
120
Will a court accept a forbearance agreement?
Yes, generally as it encourages out of court settlements
121
What does the requirement of mutuality mean?
The requirement of mutuality means that each party must provide consideration in return for the other party’s consideration. In addition, each party must be provided that consideration with the intention of giving something in exchange for the other party’s consideration. There must be a bargain struck between the parties and not just a coincidental exchange of value.
122
what is a co-operative?
Are owned by members who seek to benefit from the co-operatives activity in come way.
123
why are shareholders said to have limited liability?
because they cannot lose more than the value of the money, property, or services they have invested in the corporation in return for their shares.
124
Do shareholders participate in management?
No and they are legally seperate.
125
How liable are directors?
If they do not meet the high standards of conduct they are held strictly liable.
126
what is an implied term?
a contract term that arises by operation of the law—either common law or statute. It is not inserted into the agreement by either party, instead, it is read into the agreement by the court in order to implement the parties’ presumed intentions.
127
what is an express term?
an express term is an oral or written statement intended to create a legally enforceable obligation.It can be made by either party and is one that a reasonable person would believe was intended to create a legal obligation. Express terms can sometimes be difficult to interpret if they stem from an oral statement, or a combination or written and oral statements. This becomes a question of evidence for the courts to interpret, asking what was actually intended by the parties when they entered into the contract
128
what are three bases upon which a court might set aside an unfair contract?
Economic duress, undue influence, unconscionable transactions.
129
what is economic duress?
A party, acting on another’s fear of impending financial injury, coerces that party to enter into a contract unwillingly
130
What is undue influence?
The use of any form of oppression, persuasion, pressure or influence which overpowers the will of a weaker party and induces and agreement. The law imposes a presumption of undue influence whenever a fiduciary is involved in a transaction.
131
what is unconscionable transactions?
An agreement that no right-minded person would ever make and no fair-minded person would ever accept. The weaker party must prove that there was an improvident bargain and that there was an inequality in the bargaining position of the two parties. The stronger party then has the onusto rebut the presumption of unconscionability
132
what must the plaintiff prove to establish a case of unconscionability?
1) a substantial inequality of bargaining power, and (2)substantially unfair terms of the contract. Canadian courts previously also required proof that the defendant knew, or should have known, that the contract was unfairly exploiting the plaintiff’s vulnerability. That element, however, was controversially abolished in Uber Technologies v Helle
133
when does a mistake take place?
at or during contract formation
134
what is the statute of frauds?
The Statute of Frauds still has effect in much of Canada. It has been repealed in B.C.and Manitoba, and amendments have been proposed in other provinces. Requiring evidence inwriting was intended to prevent people (plaintiffs) from fabricating oral testimony about promisesthat were never made. It was thought that perjury would be more easily committed by oraltestimony alone than if written evidence were required.
135
what did the statute of fraud's originally govern?
(a) guarantees, (b)contracts for the sale of an interest in land, and (c) contracts not to be performed within a year.
136
What are examples of inconscionsable transaction?
illiteracy, naivety, poverty, depression
