Business Law 1044

• Please note the slides are intended as only

to provide assistance in studying. The
primary source for evaluation will be based
off the required readings in the course book.
 Legal Fundamentals
for Canadian Business
Fourth Edition

• The Course Book

• Expectation of
assigned material
being read prior to
class
• Will be discussion
 Prof. Persaud
• Email: jpersaud@georgebrown.ca
• Office hours
• Phone: 416-415-5000 ext 6703
• Office: SJA 398F
 Topical Outline
Week Topic / Task Outcome(s) Content / Activities Resources
1 Introduction 1 Chapter 1
Sources of law
Court structure
Dispute resolution
2 Contract Formation 2 Quiz/in class work Chapter 3
3 Interpretation and 2 Quiz/in class work Chapter 4 and 10
Enforceability Assignment available
4 Legislation in the 3 Quiz/in class work Chapter 5
marketplace
5 Intentional Torts 4 Quiz/in class work Chapter 2 and 10
Assignment due
6 Negligence 4 Quiz/in class work Chapter 2
Review
7 Midterm Exam All material to date

8 INTERSESSION WEEK
 Topical Outline
9 Agency and 5 In-class assignment Chapter 6
Employment

10 Employment 5 Quiz/in class work Chapter 6 and handouts

Assignment available

11 The Law of Partnership 6 Quiz/in class work Chapter 7

12 Corporations 6 Quiz/in class work Chapter 7

Assignment due

13 Real Property 7 Quiz/in class work Chapter 8

14 Intellectual Property 7 Quiz/in class work Chaptaer 9

15 Final Exam All material since midterm

Please note: this schedule may change as resources and circumstances require.
For information on withdrawing from this course without academic penalty, please refer to the College Academic
Calendar: http://www.georgebrown.ca/Admin/Registr/PSCal.aspx
 Class Objectives
• We want to define what “law” is
• We want to be able to identify the sources of
Canadian laws and distinguish their components
• We want to be able to describe the structure of the
courts in Canada and illustrate the litigation
process
• We want to be able to outline the processes of trial
and judgement
 Class Objectives
• We want to explain the function and use of
alternative methods for resolving disputes
• We want to define administrative law and explain
when and how it is used
• We want to be able to define the aspects of
criminal law that should be of concern to a
business person
 Class Objectives
• We want to be able to dissect cases – IRAC
method
• IRAC (Issue, Rule, Analysis, Conclusion)
• Online Resource: canlii.org
• Vocabulary: plaintiff, defendant, judge,
order, judgement, holding, etc.
 Evaluation
EVALUATION
SYSTEM
Assessment Description: Outcome(s) EES Date / % of Final Grade:
Tool: assessed: assesse Week:
d:

Quizzes and in- Multiple Choice All Weekly 20

class work
Two Written case studies All 1 5 and 12 2@15each
Assignments

Midterm Exam Multiple choice and 1-4 7 25

short answer

Final Exam Multiple choice and 4-7 15 25

short answer

TOTAL:100%
 “Law” – What is it?
• Law is the body of rules that can be enforced by
the courts or by other government agencies
• Important to note that the “law” is not the same as
“ethics”
• The sources of law, codified law, statutory, case
law, etc.
 Categories of Law
• Substantive law
– Rules governing behaviour
– Merits based analysis
• Procedural law
– How the legal process works
– What is procedurally fair (due process)
 Categories of Law
• Public law
– Regulates our relationship with government
– The Contract between sovereign and people
• Private or Civil law
– Regulates personal, social, and business relationships
– The social relationship between people and businesses
 Civil Legal System
• Codified body of rules
• Originated with the Romans; later modified by
Napoleon
• Used in many countries
• Quebec’s legal system is based on the French
Civil Code
 Common Law Legal System
• Common law used in Great Britain and the
Commonwealth
• System adopted by Canada’s English-speaking
provinces and the territories
• Parliamentary supremacy over judge made law
• Judge-made law
– Developed in the courts – case law
– Based on precedent or stare decisis
Sources of Law in Common Law
System
• Common law
– Following precedent or stare decisis
• Lower courts are bound to follow the decision if:
– Decision made by higher court
– In the same jurisdiction
– Based on similar facts
• Binding authority versus persuasive authority
– May distinguish cases on the facts
Sources of Law in Common Law
System
• Law of equity
– Decisions made by Courts of Chancery
– Based originally on fairness
– Developed to counter rigid common law
– Courts later merged, but bodies of law remained
separate
– Examples or remedies include orders for specific
performance or injunction
Sources of Law in Common Law
System
• Statutes
– Laws created by legislative bodies
– “Parliamentary supremacy” (i.e., legislation overrides
common law and law of equity)
– Often summarize or modify common law
– Includes government regulations
– Difference between ”statute” and “regulation”
 Stare Decisis Case
R v. Butchko
• Facts: In Saskatchewan Butchko was stopped by police after making illegal U turn.
Police smelled alcohol on his breath. Butchko refused to submit to breathalyzer test. He
was charged with refusing to submit to a breathalyzer test per section 254(2) of the
Criminal Code. The Provincial court looked to an Ontario decision (R v. Lindsay) and
convicted Butchko. Despite there being a decision from the Sask. Queen’s Bench stating
otherwise.
• Issue: Was the judge right in choosing to follow an Ontario decision rather than the
decision of the Sask. Court of Queen’s Bench?
• Rule: The operation of stare decisis requires that an inferior court must follow the
decision of a superior court even where the judge thinks that the decision is incorrect.
• Analysis: The Saskatchewan court of Queen’s Bench reversed the conviction because a
decision from the Sask. Queen’s Bench (R v. Arcand) stating that the mere smell of
alcohol on a person’s breath was not enough reason to demand a breathalyzer test. The
operation of stare decisis requires adherence to the R v. Arcand.
• Conclusion: Decision of Provincial court overturned. (see case for further story).
 Canadian Law
• Canada created by British North America Act,
1867
• Canada inherited certain conventions or traditions
from Britain
– Rule of law
– Principles established in the Magna Carta
– Parliamentary supremacy

(Continued)
 Canadian Law
• BNA Act is now called Constitution Act (1867)
– Sections 91 and 92 divide powers between federal and
provincial governments
– Federalism framework
– Principle of paramountcy applies in cases of conflict
between federal and provincial laws
– Section 91 gives the federal government the power to
make laws with respect to areas such as money and
banking, the military, criminal law, etc.
– Section 92 gives the provinces authority over health,
education, property, etc.
 Federal Law Supersedes City By-Law
British Columbia (Attorney General) v. Lafarge Canada Inc.

• Facts: Lafarge wanted to build a cement plant on the Vancouver waterfront. A Ratepayer
group filed an application to require Lafarge to get a development permit to build. Such was
opposed by Lafarge and the Vancouver Port Authority (a federally created entity under the
Canada Marine Act). Lafarge lost at the trial court level, but won at the BC Appellate court
level. The Ratepayer group appealed to the Supreme Court of Canada.
• Issue: Whether the city zoning rules applied to this project and how the federal and provincial
laws interrelate?
• Rule: Federal law is to be followed when provincial and federal laws conflict. When both
cannot be obeyed the panicle of paramountcy requires that the federal laws prevail and be
followed.
• Analysis: The SCC looked and noted that the city and zoning laws did in fact apply to Lafarge
per sections 92(8), 92(13), and 92(26) as they were constitutionally valid. However, the SCC
also found that the project was necessarily incidental to the exercise of federal power with
respect to debt and property and navigation and shipping per sections 91(1a) and 91(10) of the
Act. The Vancouver Port Authority was lawfully enacted by the Canada Marine Act and
Lafarge’s project fell within it’s authority, only the approval the Port Authority was needed.
• Conclusion: The SCC found in favor of Lafarge.
 What is the Constitution Act
1982
• Ended ties with British Government
• Listed government enactments having
constitutional status
• Established amending formula for constitutional
change
• Includes Charter of Rights and Freedoms
 Some of what the Charter
protects
• Fundamental Freedoms – Section 2
(freedom of conscience, thought, belief,
expression, peaceful assembly, association)
• Democratic and Mobility Rights – Section 3
(right to vote, run for public office)
• Legal Rights– sections 7-14
• Equality Rights – section 15
• And more!
 What does the Charter protect?
• Protects the public (individuals) from
infringement of enumerated rights from the
government or its agents

• Includes limitations on Charter rights:

– Section 1 – reasonable exceptions to Charter rights and
freedoms allowed
– Section 33 – legislatures can pass acts that infringe on
rights “notwithstanding” the Charter
– Section 32 – Charter applies only to government
 Civil Litigation
• Civil trial - action for usually some pecuniary
remedy
• Pleadings – Civil Claim – Defence - Reply
• Discovery – All Evidence
• Examination of documents
• Examination of witnesses
• Class action lawsuits - Certification
 The Trial (Plaintiff_
• Plaintiff presents case
– Burden of proof rests with Plaintiff
– Balance of probabilities
– Direct examination of witnesses (Examination in Chief)
– Cross-examination by defense (lawyer or pro se)
– If Counterclaim (defense treated as plaintiff)
 The Trial (Defense)
• Defendant presents case
– Brings forward witnesses and evidence
– Plaintiff’s lawyer gets to cross-examine
– Tries to put enough doubt into the Plaintiff’s case so
Plaintiff cannot prove his/her case
 The Trial (Judge)
• Judge determines the law and instructs the jury
• Jury decides on the facts
• If judge alone, he/she determines both facts and
law
 The Trial – What is the Point?
Damages!
• Different types of Damages (pecuniary
compensation)
– General – non-quantifiable losses (non-pecuniary)
– Special – quantifiable losses (pecuniary)
– Punitive – to punish the wrongdoer
 The Trial – What is the Point?
Equity!
• Equitable remedies should be sought where
damages are not appropriate
– Injunction – stop order/restraining order
– Specific performance – fulfill the terms of an agreement
– Accounting – pay over profits
What do you do with Judgment?
• Who is the judgement creditor?
• Who is the judgement debtor?
• Burden will be on Plaintiff who won to enforce
judgment
• Post-trial hearing to identify assets
• Seizure of property/lien on property
• Garnishment of wages
• Contempt of court (related to order of specific
conduct)
 Alternative Dispute Processes
• Process for resolving disputes outside of the
public court system
• ADR will usually involve some type of consent
from both parties to enter the process
• There are three customary methods
– Negotiation
– Mediation
– Arbitration
 ADR - Negotiation
• Negotiation
– Both parities will meet to discuss the issues with
each other with the goal of finding a solution
– Process requires collaboration and compromise
– May be conducted through representatives (i.e. non
lawyers)
– Opportunity to salvage or improve relationship
– Agreement may not be legally binding
 ADR – Mediation

• Mediation
– Unusually a natural outsider helps parties settle the
dispute
– The Mediator will facilitate the free flow of
conversation to find common ground and encourage
compromise
– Decisions are made by parties
– It is becoming a requirement in some court
processes for mediation to occur before court will hear
case
– Court may affirm mediated resolution
 ADR - Arbitration
• Arbitration
– Parties agree on an independent third party (or panel
of usually three) to make a binding decision
– Often required in contract (for example some cell
phone carriers used to require arbitration); mandated
in collective bargaining
– Parties can agree on a set of arbitration rules (for
example Canadian Arbitration Association or
American Arbitration Association)
– Arbitrators are usually experts
– Decision cannot be appealed although procedure
may be reviewed by the court
 ADR – Pros
• Why is it good?
– Parties maintain control of the process
– Parties control solution (except for binding arbitration)
– Usually the costs associated with process is lower
– Usually the matter remains private
– Because usually based on consent, may preserve
relationship
– Opportunity for matter to be weighed in on or decided
by expert
– Can achieve a win-win resolution
 ADR - Cons
• Cons
– If one of the issues is the ability to obtain information,
courts generally are able to extract it better
– Decisions in ADR may not follow precedent (common
law)
– An agreement may not be enforceable in Court
– ADR is not appropriate when there is an imbalance in
power
– No public record of dispute or decision
 What is Administrative Law
• Regulatory bodies are statutorily created and
vested with certain duties
• Regulatory bodies make decisions with respect to
statutes or regulations
• Administrative decisions must be within
jurisdiction and comply with the Constitution Act
(1867), the Charter and principles of procedural
fairness
 Administrative Law

• Court may review decision process and decision to

determine if appropriate – usually a lot of
deference given to administrative process
• Example Ontario Municipal Board for zoning
issues
• Advantages of tribunals (compared to courts):
– More efficient
– Usually involve experts in field under dispute
– Faster, more cost-effective decision-making
 What is Criminal Law?

• When in Civil law the individual sues another for

compensation (or other remedy)
• When in Criminal law – the government
prosecutes accused to punish
• Only the federal government has the power to
make criminal law
• Provincial governments have the power to create
and enforce statutes (similar to criminal law in
terms of penalties)
 What is the Criminal Process?

• Burden of proof on prosecutor

– Must prove beyond a reasonable doubt (different than
Balance of Probabilities)
– Must show that wrongful conduct took place (actus
reus)
– Must show intention to commit the act (mens rea)
• Brought by Government
• Strict liability offences
– May only need to show offence took place
– Only defence is due diligence
 Criminal Process

• Power to arrest is held by police and private

citizens
• Judicial officials (usually a Justice of the Peace)
issue search warrants, arrest warrants, and
summons to appear
• Categories of crimes
– Summary conviction - minor offence
– Indictable offence - more serious offence
– Hybrid Offences – proceed summarily or by indictable
 Criminal Process
• Judicial process
– Summary – exchange of information and negotiation
(usually less serious crimes)
– Indictable offence – more involved and lengthy (usually
more serious crimes)
• Plea bargaining – pleading to lesser offence
• When a matter proceeds to trial:
– Prosecutor presents witnesses and evidence
– Defense then presents witnesses and evidence
– Decision made by judge or jury
– Sentence – fine/imprisonment