Download BLAW 301 Midterm 1 Review: Key Legal Concepts and Canadian Legal System and more Exams Law in PDF only on Docsity!
BLAW 301 Midterm 1 Review
The need for a lawyer when starting a business - CORRECT ANSWER-Type of business, Buying a business, understanding and complying with laws about business, physical location (buying/selling property), Finances, Contracts, Intellectual Property, Taxes Role of the Lawyer - CORRECT ANSWER-Gives advice, options, consequences and opinions to client Role of the Client - CORRECT ANSWER-Makes the final informed decision about the matter When should you hire a lawyer? - CORRECT ANSWER-For srs matters, criminal matters, contested family matters, non-routine business matters, or anything you don't understand Characteristics of a sophisticated client - CORRECT ANSWER-Knowledgeable, Confident in dealings, able to research the law, provides complete and accurate info, able to understand lawyers advice How do you find a good lawyer? - CORRECT ANSWER-Make a list, use sources like Yellow Pages ads and the Law societys lawyer referral service (gives names and numbers), meet with a lawyer and see if you trust their style, its not all about money Legal Aid Alberta - CORRECT ANSWER-Provides cost effective legal services for peeps in AB, they can appoint lawyers to represent you, you may still need to pay, legal aid only covers certain types of legal matters Fixed Fee - CORRECT ANSWER-Lawyer payment method where you pay a fixed fee regardless of time involved, for ex. preparing a will or incorporating a business Contingency Fee - CORRECT ANSWER-Lawyer payment method where the lawyer gets a % of the judgement or settlement money from the client if they win the case, and if they lose they get nothing Hourly Rate - CORRECT ANSWER-Lawyer payment method that depends on time spent with client, rates vary depending on lawyers experience
Percentage Rate (value added) - CORRECT ANSWER-Lawyer Payment Method where the client pays a fixed fee plus a % based on the value of the matter, ex. probating an estate, buying/selling a business Disbursements - CORRECT ANSWER-Extra costs, out of pocket expenses the lawyer incurs when handling a clients case, ex. postage, long distance charges, photocopying, medical reports, court filing fees Retainer - CORRECT ANSWER-an amount of money a lawyer will request before starting work. The retainer is held in trust for the client. As the lawyer does work for the client they will take the money that would be billed to the client from the retainer stash and at the end of the case the remaining money is returned to the client. Complaints - CORRECT ANSWER-1) Cant complain if you lose your case
- Can complain to Law Society of Alberta if a lawyer breaches Code of Professional Conduct 3)Complaints about lawyer fees is directed to taxation officer (court official) Complaining doesnt mean money - CORRECT ANSWER-If you want money from your lawyer, you need to sue them from their insurance company, or if a lawyer has stolen trust funds, you complain to the Assurance Fund for compensation Business People's Code - CORRECT ANSWER-"Business people" do not have a code of conduct, they should make their own based on core ethical values and try their best to implement them throughout their company and to their clients What could be included in the code of conduct for Business people in a small business - CORRECT ANSWER-1) Standards for employee behavior
- Proper use of corporate money/assets
- Confidentiality of business/employee info 4)Fair dealing 5)Conflicts of interest 6)Process for reporting of illegal/unethical behavior Common Law Legal System - CORRECT ANSWER-Body of Law evolved through judicial decisions (judgement) of the courts, its based on precedent, its fair,consistent, and predictable Law - CORRECT ANSWER-Law is the body of rules made by Parliament, Legislatures, Government agencies, and the courts, and have binding legal force Statute Law - CORRECT ANSWER-A formal written enactment of a legislative body whether federal, provincial, or municipal
2)Whether the decisions has been reversed/overturned by a higher level court in the same jurisdiction
- similarity of facts and/or legal issues involved 4)whether the case can be distinguished by some significant element 5)whether the decision has been overruled by legislation of Parliament or Legislatures Doctrine of Parliamentary Supremacy - CORRECT ANSWER-Legislation (Law made by Parliament or Provincial Legislatures) overrides the common law Subordinate Legislation - CORRECT ANSWER-Rules made by lower levels of government, these laws override common law and include regulations made by cabinet and gov. departments, bylaws made by municipal governments, rules made by administrative tribunals Courts power to strike down laws - CORRECT ANSWER-Courts have the power to strike down any legislation that is found to be unconstitutional (inconsistent with the Constitution or Charter of Rights Legislative Branch - CORRECT ANSWER-Paliament (federal) & Legislatures (provincial) Executive Branch - CORRECT ANSWER-Prime Minister and Federal Cabinet; Premiers and Provincial Cabinets, Includes government departments and the civil servants/bureaucrats in each department Judicial Branch - CORRECT ANSWER-Includes federally and provincially appointed judges Conventions - CORRECT ANSWER-Unwritten rules dictating how government is to operate; traditions, ex. political parties, governor general, Lieutenant Governor, Parliamentary Supremacy, Rule of Law, Power of Governor to adjourn parliament The Constitution Act of 1867 - CORRECT ANSWER-Originally Named the British Norht american Act (BNA Act), Created dominion in canada, divided powers between federal and provincial governments (s.91 s.92), divided powers amongst gov. branches The Constitution Act of 1982 - CORRECT ANSWER-The Canadian Charter of Rights and Freedoms, ended ties with the brits, to amend this act you need 2/3 of provinces and 50% population approval, lists acts having constitutional status Constitutional Case Type #1 - CORRECT ANSWER-Division of Powers; Court determins whether legislation is Ultra vires (outside of jurisdiction, unconstitutional) Constitutional Case Type #2 - CORRECT ANSWER-Charter of Rights and Freedoms; Court determines whether legislation infringes the charter
Federal System - CORRECT ANSWER-11 Legislative Bodies--- 1 Federal and 10 Provincial Section 91 - CORRECT ANSWER-Federal Powers; They include: 1)Trade and Commerce 2)Banking and Currency 3)Postal Service 4)Criminal Law 5)Taxation (federal) 6)Import/Export 7)Interprovincial-International transportations 8)Intellectual Property (copyrights,patents) Section 92 - CORRECT ANSWER-Provincial Powers; They include: 1)Municipal Institutions 2)Hospitals 3)Administration of justice and courts within the province 4)Property and civil rights 5)Local works and undertakings 6)Matters of a local or Private Nature Paramountcy - CORRECT ANSWER-a doctrine that is applied where federal and provincial laws are both valid but conflicting (federal law wins) Delegation of power - CORRECT ANSWER-Neither federal not provincial can delegate powers to each other, they would need to make an amendment for that, but they can 'share' power through agreements and may consist of transfer payment schemes for health, education, or social programs Charter of Rights and Freedoms - CORRECT ANSWER-- It is an appendix to the constitution act 1982
- Protects certain rights and freedoms from government interference
- All laws must conform to the charter
- You must amend the constitution to take rights away
- Rights are entrenched in the Constitution i.e. they cannot be amended or repealed without changing the Constitution
- Covers more and broader rights than the Bill of Rights What specifically does the Charter protect - CORRECT ANSWER-Fundamental Freedoms Legal Rights Equality Rights Democratic Rights Mobility Rights Language Rights Minority Language Education Rights
Language and Minority Education - CORRECT ANSWER-Official use of English and French, language of instruction Section 23.3 limits application of minority language education rights to areas where population numbers warrant Section 33 - CORRECT ANSWER-Notwithstanding clause (also called the 'opting-out clause' or 'sledgehammer clause')
- Gives power to the government to 'opt-out' of certain Charter rights i.e. fundamental freedoms, legal rights, and equality rights
- The section was introduced bc of quebec feud
- rarely used, its a huge political gamble Section 1 - CORRECT ANSWER--If a law or action is found in violation of the charter, the court engages in a S.1 test called the Oakes Test
- The law/government may be allowed to stand against the charter if the court finds that it is 'demonstrably justified in a free and democratic society' ie. balancing of rights Section 32 - CORRECT ANSWER-Application Section
- The charter protects us from Government including departments, boards, agencies, and police, customs, gov. enforcement officers
- We are protected from legislation which breaches the Constitution AND unconstitutional actions of police or gov. officials (abuse of authority)
- DOES NOT protect us from private activitiy (non-government)
- Private activity is governed by Provincial Human Rights legislation and the Law of Torts Section 24 - CORRECT ANSWER-If rights are violated, apply to the Courts for 1)Remedies that are 'appropriate and just' and/or 2)Exclusion of evidence IF its admission, it 'would bring the administration of justice into disrepute' Section 52 of the Constitution Act 1982 - CORRECT ANSWER-Courts have the power to 'strike' laws: the constitution is the supreme law of canada, laws that violate the charter are of no force or effect to the extent of the inconsistency Alternatives to striking down a law include 1)Severence of offending sections Charter Summary - CORRECT ANSWER-Fundamental Freedoms: Religion, Expression, Peaceful Assembly, Association, All Section 2 Charter Rights: Democratic (S3-5), Mobility (S6), Legal (S7-14), Equality (S15), Language (S16-23) Limitations: Reasonable Limits (S1), Applies to Governments only (S32), Notwithstanding clause (S32) Remedies: Role of the Court, Order 'approximate and just' remedies,Exclude evidence, Strike law(S.52)
Importance of Charter and Constitutional Changes - CORRECT ANSWER-Courts now play a more active role in enforcing our rights Quebec still beefing over constitutional amendments Human Rights Legislation - CORRECT ANSWER-Ensures access to employment, facilities, services, accomodation and to tenancies without facing barriers created thru discrimination Also prohibits hate messages and discriminatory publications Alberta Human Rights Act - CORRECT ANSWER-Is the purpose of the legislation (Preamble), All other legislation must comply (primacy) Protects albertans against discrimination but only in certain protected areas and on certain prohibited grounds Retaliation and frivolous/vexation complaints are prohibited, first half deals w/ protection, second half deals with complaints and decision-making process Protected Areas in AHRA - CORRECT ANSWER--Publications, notices
- Goods,services,facilities
- Tenancy
- Employment (including equal pay, employment practices, employment applications and advertisements
- Membership in trade unions professional organizations (not including private clubs) Prohibited grounds in AHRA - CORRECT ANSWER-Race,Religious beliefs, color, gender, gender identity and expression, physical and mental disabilities, marital and family statues, age (18 and older only), Ancestry, place of origin, source of income, sexual orientation Duty to Accomodate - CORRECT ANSWER-"Not discriminating' includes a duty to take reasonable steps to accomodate individuals with respect to prohibited grounds 2 exceptions:
- Only if accomodation is costly/inconvenient, but not required to incur substantial hardship
- No duty to accomodate those who do not meet bona fide (genuine) occupational requirements (BFOR) So discrimination is permitted if reasonable and justifiable as per either of the above exceptions Affirmative Action Programs - CORRECT ANSWER-Any profession or job where there is a tradition of gender or racial imbalance is allowed to give preferential treatment or consideration to the minority Harassment - CORRECT ANSWER-Legislation includes protection from harassment in the workplace based on any of the protected grounds
Criminal Trial - CORRECT ANSWER-Parties: Crown v. Accused (The accused is either found guilty or not guilty, and if found guilty they receive conviction/punishment) Onus of Proof: Falls on the crown to prove guilt, Accused does not have to prove not guilty Burden of Proof: Proof beyond a reasonable doubt (the accused undoubtedly committed the crime) Civil Trial - CORRECT ANSWER-Parties: Plaintiff v. Defendant (Plaintiff is party bringing the claim, defendant is found liable or not liable, and if liable, the plaintiff makes a judgement against defendant and the defendant owes the plaintiff) Onus of Proof: Falls on the Plaintiff to prove liability Burden of proof: Proof on a balance of probabilities (the defendant probably caused the injury) Burden of Proof - CORRECT ANSWER-Criminal: Greater burden due to grave consequences and inequality of parties Civil: Lesser burden due to lesser consequences; parties more evenly balanced Appeal Court - CORRECT ANSWER-A trial is not held in the appeal court, there is no witness testimony , no exhibits entered Only questions of law may be appealed to an appeal court (The appeal court determines whether the trial court made an error in interpreting or applying precedent or statute law) Leave (permission) to appeal may be required A panel of judges hears appeals The appeal court will: Review the transcript of the trial, review the trial judge's reasons for decision, hears verbal submission from lawyers, reviews written arguments Apellant v. Respondent (Apellant is party appealing (may be plaintiff or defendant/crown or accused), Apellant wins of Appeal is allowed vice versa Outline of Canada's court system - CORRECT ANSWER-See powerpoint slide 11 of resolution of disputes ch. Alberta Court of Appeal - CORRECT ANSWER-Alberta's highest court It hears appeals from the lower courts On occasion, its decisions may be appealed to the Supreme court of canada No fresh witness testimony, no new exhibits entered Panel of justices, no jury The court of appeal is governed by the Court of Appeal Act Court of Queens Bench - CORRECT ANSWER-Alberta's superior trial court This court has unlimited trial jurisdiction It can act as the court of first instance (trial court) in any matter AND it hears appeals from Provincial courts and Administrative Tribunals
Judge alone or judge and jury trial This court is governed by the Court of Queen's Bench Act Provincial Court of Alberta - CORRECT ANSWER-Exclusively a trial court, w/ its jurisdiction limited by the Provincial Court Act The Provincial court act creates five courts of Alberta's Provincial court, each with distinct and restricted jurisdiction Cannot deal with certain matters, specifically:
- Claims involving title to land
- Defamation suits
- Malicious prosecution actions
- Wills and estates litigation
- Debt and damage claims for amounts exceeding $50,
- Grant Divorce Provincial Court: Criminal Court - CORRECT ANSWER-Most criminal charges against adults PC: Traffic Court - CORRECT ANSWER-Traffic violations under Traffic Safety Act (non- criminal offenses) PC: Youth Court - CORRECT ANSWER-Criminal charges against youths PC: Family Court - CORRECT ANSWER-The 'before and after' divorce court (custody and maintenance BUT not divorces) and child welfare matters PC: Civil Court - CORRECT ANSWER-Debt claims and damage claims - if within the Court's monetary jurisdiction Federal Courts List - CORRECT ANSWER-Supreme Court of Canada - the highest court in canada, it is governed by the supreme court act Federal Court of Appeal - an appeal court hearing appeals from the lower federal courts Federal Court - a trial court hearing disputes that fall within the federal sphere of power Tax court of canada - a trial court hearing disputes concerning federal tax matters Should you sue? - CORRECT ANSWER-Consider these factors first:
- Probability of success, Chance of recovery
- Cost in money,time, and emotional energy
- Other options like if a written demand has been sent, settlement options explored?
