INSTRUCTOR’S RESOURCE MANUAL To Accompany
YATES
LEGAL FUNDAMENTALS FOR CANADIAN BUSINESS Third Edition
Prepared by Mitch Houg, Esq. B. Comm, LLB
CONTENTS Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10
The Canadian Legal System ....................................................................... 1 Torts and Professional Liability ................................................................ 18 Formation of Contracts ............................................................................. 38 Enforcing Contractual Obligations ........................................................... 56 Legislation in the Marketplace.................................................................. 78 Agency and Employment ........................................................................ 100 Methods of Carrying on Business ........................................................... 124 Property ................................................................................................... 150 Ideas and Information ............................................................................. 172 Electronic Commerce and International Trade ....................................... 190
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Instructor's Manual Chapter 1
The Canadian Legal System Teaching Suggestions I usually take about 2 to 3 hours of a 12-week course (3 hours per week) to go over this portion of the text. I start by looking at Civil law. I mention briefly the history (Justinian's Code and Code Napoleon) and then examine the importance of the Code, emphasizing how it sets out general principles of law that judges then apply to the cases before them and the relative lesser importance of case precedents, which are persuasive rather than binding in such a system. Then I go through the history of the development of the common law of England. (I have found that unless I go over the history students have a difficult time understanding the relationship between common law, equity and statutes.) If time permits I mention William the Conqueror, emphasizing the on-going struggle for power between the council of nobles and the king, which led to the struggle between parliament and the king. I discuss the development of the three common law courts, the writ system, the development of the Court of Chancery, and the law of equity to relieve the harshness and inadequacies of the common law. That this developed from the practice of petitioning the king who then gave the job to his chancellor and eventually to vice chancellors constituted in the form of the court of chancery. I usually give examples of equitable remedies such as the injunction to illustrate the difference. I then point out the victory of parliament over the king in the English Civil war with the result that Parliament becomes the supreme law making power. Thus statutes override judge made law. I note at this stage the passage of the Judicature Acts merging the courts. I bring the process into Canada by first looking at the BNA Act which creates the dominion of Canada and gives Canada a constitution like that of the United Kingdom. I closely examine (using examples) the division of powers between the federal and provincial governments under section 91 and 92 emphasizing that these are not exclusive water tight categories but sources of power resulting in some practical overlap of law making powers. I point out what happens in the event of conflict between federal and provincial jurisdictions and that the BNA Act is still in force in Canada in the form of the Constitution Act (1867). We then look at the Constitution Act (1982), which ended the last remaining tie to the British Parliament (not to the Queen) and enacted the Charter of Rights and Freedoms. I spend some time discussing the development of human rights legislation at the provincial and federal levels pointing out that these statutes didn't protect people from government and also giving examples of human rights abuses by the Canadian government. I usually start by pointing to the limitations of the Charter -- that it only applies to government, that parts can be overridden (Section 33) and that reasonable exceptions are allowed (Section 1) I then look at each area of the Charter so that the students get a feeling for what is covered, though I don't typically look at the sections in detail. Finally I emphasize that the Charter is constitutionally entrenched (the supreme law of Canada) and that it cannot be easily changed. I usually conclude by pointing out the importance of the Charter and that it gives more power to the courts at the expense of
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Chapter 1 - The Canadian Legal System
parliament limiting the idea of supremacy of Parliament. I also mention the problems that followed Meech Lake and Charlottetown accords, the failed referendum to amend the constitution, the resulting problems in Quebec and the separation referendum. I then turn my attention to the courts. I illustrate the court structure in my province (B.C.) similar to the one included in the text. I point out the difference between appeal courts and trial courts and also the difference between the criminal and civil function. I look at the federal level courts and provincial level courts and the relationships between them. I then look at the function of each court body in some detail and also introduce the idea of administrative tribunals. (Often I separate the discussion of administrative tribunals and government regulation and leave it until the end of the course where the students are better able to understand the legal principles.) I then go through the civil litigation process at the superior court level. I point out the delays and the pressure exerted by each process to get the parties to settle and avoid a trial or at least to reduce the maters that have to be examined at trial. I also look at the trial process itself and what follows: the process of enforcing a judgment and the various remedies available. I also look at the criminal process to a limited extent and end by looking at alternatives to the litigation process. My examination of ADR concentrates on the advantages and disadvantages of negotiation mediation and arbitration compared to the litigation process and to some extent the option of laying a criminal complaint. Obviously the presentation of this information is primarily by lecture and I find the time well spent as it lays a foundation for building the rest of the course material. Chapter Summary History Knowledge of law is vital for business Definition: law consists of rules enforceable in court or by other government agencies Law and morality should not be confused Quebec uses the Civil Code Other provinces use common law Common law is based on cases Judges are bound to follow cases (stare decisis) Common law was developed by the common law courts in England Equity was developed by Court of Chancery Statutes are passed by Parliament or legislatures Our law is based on a combination of common law, equity, and statutes The Law in Canada BNA Act creates Canada with constitution like Britain’s Constitution Act (1867) (BNA Act) divides powers between federal and provincial governments Federal law to be followed where provincial and federal laws conflict Statute created by first, second, and third reading in Parliament and Royal Assent Statutes published and online Regulations also qualify as law
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Chapter 1 - The Canadian Legal System
Constitutional law Constitution Act (1982) gives Canada independence from Britain Federal and provincial statutes protect human rights Charter protects individuals and businesses from rights abuses by government Section 1 limitation allows for reasonable exceptions Section 33 limitations allow opting out of sections 2 and 7-15 Charter protects fundamental freedoms, democratic rights, mobility rights, legal rights, equality rights and language rights Charter limited to government actions The Courts Court structure varies between provinces Provincial court, Small claims, Family, Criminal Superior court highest trial court in province Superior court of appeal final court of appeal in province Right to Trial by Jury guaranteed by Charter Supreme Court of Canada highest court in Canada Federal Court deals with disputes in federal arena Litigation Service of Notice of Civil Claim commences process Notice of Civil Claim identifies facts and issues Response to Civil Claim defines area of contention Discovery process: discloses documents, examination for discovery produces statements under oath Payment into court and offers to settle encourage settlement Class actions involve many plaintiffs represented in one procedure At trial, the plaintiff goes first, then the defendant The case must be proved “upon balance of probabilities” Judge instructs the jury in law, but the jury decides facts Damages and other remedies awarded The plaintiff (now judgment creditor) must enforce judgment ADR Alternatives to litigation provide advantages Negotiation avoids conflict Mediator helps parties to reach a decision Arbitrators make binding decisions ADR provides flexibility Administrative Law Dealing with regulatory bodies Administrative decisions must be within jurisdiction and compliant with Charter Procedural fairness required in administrative hearing Court may review process Criminal law In a criminal action the state prosecutes the accused Power to make criminal law resides exclusively with federal government
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