Midterm one Flashcards
(126 cards)
1
Q
What is Law?
A
Law is a body of rules made by the government that can be enforced by the courts or government agencies. It is not the same as morality.
2
Q
What are the two main categories of law?
A
Substantive Law: Defines rights and responsibilities
Procedural Law: Outlines the process for enforcing those rights
3
Q
What is the difference between public and private law?
A
Public Law: governs the relationship between individuals and the state
Private Law: governs personal, social, and business relationships
4
Q
How does the Civil Law system work in Quebec?
A
Based on the French Civil Code; relies on broad principles, not precedent. Judges apply codified rules without being bound by previous decisions
5
Q
What is the common law system?
A
Used in all provinces except Quebec. Based on judicial precedent (stare decisis). Judges must follow decisions from higher courts
6
Q
What does Stare Decisis mean?
A
To stand by what has been decided. Judges must follow earlier decisions from higher courts. Promotes consistency and predictability
7
Q
What is Equity?
A
A system of fairness developed to address gaps or rigidity in common law. Allows courts to issue remedies like injunctions or specific performance
8
Q
What are Statutes and how do they interact with case law?
A
Statutes are laws passed by legislatures. Under Parliamentary Supremacy, statutes override case law
9
Q
What are the key features of Canada’s Constitution?
A
Constitution Act, 1867 and 1982
Divides power between federal and provincial governments (Sections 91 and 92)
Includes the Charter of Rights and Freedoms
Establishes rule of law: government actions must comply with law
10
Q
What is the doctrine of Paramountcy?
A
When federal and provincial laws conflict, the federal law prevails.
11
Q
What is the legislative process in Canada?
A
First Reading – Introduction
Second Reading – Debate
Third Reading – Amendments
Royal Assent – Becomes law
12
Q
What is the Charter of Rights and Freedoms?
A
A constitutional guarantee of basic rights (e.g., equality, freedom, legal rights). Introduced in 1982.
13
Q
What limitations exist on Charter rights?
A
Section 1: Rights can be limited if justified in a free and democratic society.
Section 33: “Notwithstanding clause” allows legislatures to override some rights for up to 5 years.
14
Q
What are the Fundamental Freedoms (Section 2)?
A
Freedom of religion
Freedom of thought and expression
Freedom of peaceful assembly and association
15
Q
What are Democratic Rights?
A
Right to vote, run for office, and require elections every 5 years (with limited exceptions).
16
Q
What are Mobility Rights (Section 6)?
A
Right to live and work anywhere in Canada, and to enter/leave the country freely. Subject to licensing and qualification rules.
17
Q
What are Legal Rights (Sections 7–14)?
A
Protect individuals from government abuse.
Includes:
Right to life, liberty, and security (S.7)
Protection against unreasonable search/seizure (S.8)
Right to fair trial (S.11)
Protection from cruel and unusual punishment (S.12)
18
Q
What are Equality Rights (Section 15)?
A
Prohibits discrimination and guarantees equal protection and benefit of the law.
19
Q
What are Language Rights?
A
French and English have equal status in federal institutions. Education and legal proceedings must be available in both languages.
20
Q
What is Human Rights Legislation?
A
Laws (provincial and federal) that prohibit discrimination based on race, religion, sex, age, etc. Example: Same-Sex Marriage Case.
21
Q
What is Alternative Dispute Resolution (ADR)?
A
A set of non-court methods for resolving disputes, including negotiation, mediation, and arbitration.
22
Q
What are the main forms of ADR?
A
Negotiation: Parties communicate directly to settle.
Mediation: Neutral third party helps reach a voluntary agreement.
Arbitration: Third party hears both sides and makes a binding decision.
23
Q
What are the advantages of ADR?
A
Faster and cheaper than court
Private and informal
Preserves business relationships
More control over outcomes
24
Q
What are the disadvantages of ADR?
A
No public record (less transparency)
Unequal power can affect fairness
Limited ability to compel evidence
Arbitrator decisions are hard to appeal
25
What is Online Dispute Resolution (ODR)?
ADR conducted online, often used for e-commerce disputes. It’s cost-effective, efficient, and accessible.
26
What are the two types of court cases?
Civil: Between individuals or businesses; resolved on the balance of probabilities.
Criminal: Brought by government; requires proof beyond a reasonable doubt.
27
What is the difference between civil and criminal law outcomes?
Civil: Compensation (e.g., damages)
Criminal: Penalties (e.g., jail, fines)
Same conduct may lead to both (e.g., assault).
28
What are the trial courts in the provinces?
Provincial Court: Lower-level court (e.g., small claims, family, less serious crimes).
Superior Court: Higher-level court handling major civil and criminal cases.
29
What are specialized courts?
Drug treatment courts
Mental health courts
Indigenous courts (e.g., sentencing circles)
30
What is a limitation period?
Legal time limit for bringing a lawsuit. Varies by case type and province. Encourages timely claims.
31
What is jurisdiction?
The authority of a court to hear a case. Must show a real and substantial connection to the location. Can be specified in contracts.
32
What are pleadings in a civil case?
Statement of claim (plaintiff)
Statement of defence (defendant)
Counterclaims and crossclaims may follow
33
What happens during discovery?
Document exchange
Examinations for discovery (verbal Q&A under oath)
Helps each side prepare and understand evidence
34
What is a pre-trial conference?
A meeting to narrow issues, encourage settlement, and see if trial can be avoided.
35
What is an offer to settle?
A formal proposal to end the case. If accepted, the matter is resolved without a trial.
36
What is the structure of a civil trial?
Plaintiff presents case
Defendant cross-examines
Defendant presents case
Closing arguments
Judgment
37
What is the burden of proof in civil trials?
Plaintiff must prove their case on the balance of probabilities (more likely than not).
38
What are the types of damages (remedies)?
General: Pain, suffering, future income
Special: Actual expenses/losses
Punitive: To punish wrongdoer
39
What are other civil remedies besides damages?
Injunction: Order to do or stop doing something
Specific performance: Order to fulfill a contract
Declaration: Court confirms a legal status or interpretation
Accounting: Handing over profits
40
How can a judgment be enforced?
Seizure of property
Garnishment of wages
Court orders to comply
41
What is a class action lawsuit?
A lawsuit brought by one or more people on behalf of a larger group with the same issue. Must be certified by court.
42
What are the steps in negotiation?
Preparation
Information gathering
Opening offers
Counteroffers/concessions
Agreement
43
What is an agency relationship?
A legal relationship where one party (agent) is authorized to act on behalf of another (principal) when dealing with third parties.
44
What is express vs. implied authority?
Express: Clearly stated authority.
Implied: Authority inferred from conduct or circumstances.
45
What is agency by estoppel?
When a principal’s conduct leads a third party to reasonably believe an agent has authority, the principal is bound—even if no actual authority exists.
46
What is agency by ratification?
When a principal approves an act performed without authority after the fact, making it legally binding.
47
What is agency by necessity?
Arises in emergencies where the agent must act to protect the principal’s interest, without prior approval. Rare today.
48
What is fiduciary duty?
A high duty of loyalty owed by agents to act in the best interest of the principal, including full disclosure and no conflicts of interest.
49
What is a power of attorney?
A written agency agreement under seal, often used to give legal authority to act on financial or personal matters.
50
What are the agent’s duties?
Act within authority
Perform duties with care
Follow instructions
Avoid conflicts
Account for money and property
51
What are the principal’s duties?
Pay compensation
Reimburse expenses
Honor the terms of the agreement
52
When can an agent be liable to third parties?
When acting outside authority
When misrepresenting authority (warranty of authority)
For fraud or negligence
53
When is a principal liable for an agent’s actions?
When actions are within the agent’s actual or apparent authority
Under vicarious liability, even for independent agents in some cases
54
How can an agency relationship end?
By agreement or notice
Upon death, insanity, or bankruptcy of the principal
As specified in the contract
55
What is a partnership?
A business relationship between two or more people carrying on business with a view to profit.
56
What is a limited partnership?
A partnership with both general partners (full liability) and limited partners (liability limited to investment). Limited partners cannot manage.
57
What is a Limited Liability Partnership (LLP)?
A partnership where partners are not personally liable for acts of other partners unless under their supervision. Usually applies to professionals.
58
What is a joint venture?
A temporary arrangement for a single project. May be governed by partnership principles if it meets the legal test.
59
How is a partnership formed?
By contract (recommended)
By conduct (e.g., sharing profits and management)
A written contract is not required but is highly advised.
60
What duties do partners owe each other?
Fiduciary duty
Duty to share profits and losses (unless otherwise agreed)
Duty to participate in management
Duty to disclose information
61
What is vicarious liability in partnerships?
All partners are liable for business-related actions of other partners and employees.
62
What are the risks of unlimited liability in a general partnership?
Partners are personally liable for business debts
Personal assets can be used to satisfy claims
Retiring partners remain liable for existing obligations unless notice is given
63
When can a partnership be dissolved?
By notice
By death, bankruptcy, or expiry
By court order
Public notice is required to end ongoing liability
64
How are partnership assets distributed on dissolution?
Pay debts
Repay capital
Distribute remaining funds to partners
65
What is a corporation?
A legal entity separate from its shareholders. It can own property, sue, be sued, and enter into contracts.
66
What is limited liability?
Shareholders are not personally responsible for the corporation’s debts or obligations beyond their investment.
67
What is the corporate veil?
Legal separation between a corporation and its shareholders. Courts may "lift the veil" in cases of fraud or misconduct.
68
What are the articles of incorporation?
The founding document of a corporation. It sets out the corporation's name, share structure, and internal governance rules.
69
What is a shareholder?
An owner of a portion of the corporation through shares. Shareholders typically have limited decision-making power.
70
What is a director?
A person elected by shareholders to manage or supervise the corporation’s affairs. Directors owe fiduciary and care duties.
71
What is an officer?
A person appointed by directors to carry out day-to-day operations (e.g., CEO, CFO). Officers owe similar duties as directors.
72
What is a dividend?
A distribution of profits to shareholders. Not guaranteed—only paid if declared by directors.
73
What are common vs. preferred shares?
Common shares: Voting rights, share in profits/residual assets.
Preferred shares: Priority for dividends but usually no voting rights.
74
What is a derivative action?
A lawsuit brought by shareholders on behalf of the corporation against directors/officers for misconduct.
75
What is a unanimous shareholder agreement (USA)?
An agreement that outlines how shareholders will govern the corporation, including voting rights, board selection, and share transfer restrictions.
76
What is a transparency register?
A record of individuals with significant control over a corporation, required for compliance and anti-money laundering purposes.
77
What are the benefits of incorporation?
Limited liability
Perpetual existence
Easier to raise capital
Ownership is transferable
Tax planning opportunities
78
What are the disadvantages of incorporation?
Costly and complex to set up
Regulatory requirements
Weak position of minority shareholders
Ongoing compliance and filings
79
What is the role of shareholders?
Vote on major decisions
Elect directors
Receive dividends if declared
Access to certain records
Generally owe no fiduciary duty to the corporation
80
What fiduciary duties do directors and officers owe?
Duty of loyalty (act in the best interests of the corporation)
Duty of care (act prudently and diligently)
Cannot use insider information or compete unfairly
81
When can directors be personally liable?
For unpaid employee wages
Breach of environmental laws
Unpaid taxes
Breaches of fiduciary or statutory duties
82
What are the two types of corporations?
Closely held (private): Few shareholders, less regulated, shares not publicly traded.
Broadly held (public): Shares offered to the public, subject to more regulation and reporting.
83
How can corporations raise money?
Issuing shares (equity financing)
Borrowing funds (e.g., loans, bonds, debentures)
84
What happens when a corporation dissolves?
Assets are sold
Creditors paid first
Remainder distributed to shareholders
Can occur voluntarily, by bankruptcy, or by failing to meet legal obligations (e.g., annual filings)
85
What are pre-emptive rights?
The right of existing shareholders to buy new shares before they are offered to outsiders, to prevent dilution.
86
What is intellectual property (IP)?
Legal rights that protect creations of the mind such as inventions, works of art, designs, symbols, and proprietary information.
87
What are the five main types of intellectual property?
Copyright
Patents
Trademarks
Industrial Design
Confidential Information / Trade Secrets
88
What is copyright?
The right to copy, distribute, and control the reproduction of original creative works (e.g., music, writing, software).
89
How long does copyright last in Canada?
For individuals: 50 years after death
For corporations/anonymous creators: 50 years after publication
90
What is "fair dealing"?
A legal exception allowing limited use of copyrighted material for purposes such as education, research, parody, and news reporting.
91
What is a patent?
A government-granted monopoly giving exclusive rights to make, use, or sell an invention for 20 years.
92
What can be patented?
New, original, useful, and non-obvious inventions. Must be capable of industrial application.
93
What cannot be patented?
Scientific principles
Abstract ideas
Products designed for illegal purposes
94
What is a trademark?
A symbol, word, logo, or design used to distinguish a product or service from others.
95
How long does trademark protection last?
10 years, renewable indefinitely if the trademark remains in use.
96
What is passing off?
A tort where a business misleads consumers into thinking they are associated with another brand. Can occur with or without registered trademarks.
97
What is industrial design?
Legal protection for the visual appearance or pattern of a product (e.g., the shape of a bottle).
98
What is integrated circuit topography?
Protection of 3D design of integrated circuits. Protected under federal law for 10 years.
99
What is confidential information?
Private information not publicly known, intended to remain confidential within a business or relationship (e.g., client lists, internal plans).
100
What is a trade secret?
A type of confidential info that gives a business competitive advantage (e.g., recipe, formula). Must be valuable, not generally known, and actively protected.
101
What is an Anton Piller order?
A court order that allows a plaintiff to seize evidence from a defendant to prevent destruction of infringing materials.
102
What is the purpose of IP law?
To protect mental effort, encourage innovation, and balance creator rights with public access.
103
Who owns copyright in Canada?
The creator, unless created in the course of employment (then usually the employer). Copyright arises automatically.
104
What are moral rights in copyright?
Rights to be credited (attribution), to protect integrity of the work, and to prevent misuse—retain even if copyright is sold.
105
What are remedies for IP infringement?
Injunctions
Damages
Accounting of profits
Seizure/destruction of infringing materials
Punitive damages
106
How can copyright infringement occur online?
Unauthorized downloading/sharing
Hosting copyrighted material without permission
Using copyrighted images, music, or code on websites
107
What is the Indigenous perspective on IP?
Traditional knowledge and cultural expressions are viewed as shared property of the community, often not well protected by Western IP systems.
108
How are trade secrets protected?
Confidentiality agreements (e.g., NDAs)
Restrictive covenants (e.g., non-competes)
Clear labeling and internal procedures
Remedies include injunctions and breach of contract claims.
109
What is real property?
Land and anything permanently attached to it (e.g., buildings, trees, fixtures).
110
What is personal property?
Movable or intangible property.
Chattels: Tangible, movable items.
Chose in action: An intangible legal right (e.g., debt owed).
111
What is a fixture vs. chattel?
Fixture: Item affixed to land; considered part of real property.
Chattel: Movable item; not part of land unless explicitly included.
112
What is an estate in land?
he legal right to possess or use land.
Fee simple: Full ownership (subject to zoning, etc.)
Life estate: Right to use land for one’s lifetime
Leasehold estate: Right to use land for a set time (e.g., rental)
113
What is an easement?
A non-possessory right to use another's land for a specific purpose (e.g., driveway access).
114
What is adverse possession?
Acquiring ownership of land through long-term, open, unauthorized use tolerated by the legal owner.
115
What is tenancy in common vs. joint tenancy?
Tenancy in common: Shared ownership with separate shares; no survivorship.
Joint tenancy: Equal ownership with right of survivorship.
116
What is a condominium?
Individual ownership of a unit plus shared ownership of common areas (e.g., hallways, elevators).
117
What is a condominium declaration?
The founding document of the condo corporation; sets out unit descriptions, rights, and restrictions.
118
What are condo by-laws and rules?
By-laws: Corporate governance rules (e.g., director duties).
Rules: Day-to-day conduct regulations (e.g., noise, pets). Rules take effect 30 days after notice unless challenged by 15% of owners.
119
What is a mortgage?
A loan secured by real property. If the borrower defaults, the lender can enforce the mortgage (e.g., power of sale).
120
What are the remedies for mortgage default?
Power of sale
Foreclosure
Judicial sale
121
What are the landlord’s key responsibilities?
Maintain unit in good repair (S.20)
Provide vital services (S.21)
Respect tenant’s enjoyment and privacy (S.22–24)
122
What are the tenant’s responsibilities?
Keep unit clean (S.33)
Repair damage caused by negligence (S.34)
Not change locks or harass landlord (S.35–36)
123
When can a tenant terminate a lease early?
Mutual agreement (S.3)
Domestic violence (S.47.1)
By tribunal order (S.29)
124
When can a landlord terminate a lease?
Non-payment of rent (S.59)
Illegal activity (S.61)
Damage or disturbance (S.62, S.64, S.65)
No-fault reasons (e.g., family moving in, major repairs)
125
What is the law of finders?
The finder of lost property has good title against all but the original owner.
Public space: Finder has claim.
Private space: Property owner has stronger claim.
Finder must try to return the item.
126
What’s the difference between selling shares vs. selling assets in a corporation?
Selling shares: New owner steps into ownership; business continues uninterrupted.
Selling assets: Specific property transferred; may affect licenses, contracts, and tax implications.
