Chapter 1

Sophisticated client – understands the role of lawyer and of the client. She knows when to represent
herself, when to hire a lawyer, and how to hire a lawyer.

Client should be the decision maker

Solicitor-client privilege – duty of lawyer to keep information provided by client confidential

When to hire a lawyer

 If owner is buying existing business, lawyer can provide advice and information that will enable
the owner to minimize his potential risk and liability.
 If starting a business, lawyer can determine which municipal, provincial, and federal laws are
relevant to business and provide advice as to what is required to ensure compliance with them.
i.e. noise bylaws / business laws
 Lease
 The finance for start-up of business and the personal liability of owner before he signs relevant
documentation. This may require provision of legal advice by owner’s lawyer
 Business’ intellectual property – patents, trademarks, copyrights, infringement
 Selling business

Law society are organizations that are self-governing bodies for lawyers. Each provincial law societies
provide online information on lawyers’ fees.

 They may charge fixed fee for work required.

 Lawyer may bill client for time they spend working on file using hourly rate
 Lawyer may receive a percentage of amount the client collect – contingency fee agreement.
Provincial law societies may restrict or set a maximum contingency fee
 Client is also responsible for paying out-of-pocket costs incurred by lawyer on client’s behalf -
disbursement. It includes phone/courier charges, court fees, fees charged by an expert
 If client decided to hire a lawyer and lawyer agrees, the lawyer usually request that a retainer be
paid before work. Retainer works as deposit

Legal aid – provision of legal service to person in financial need. Normally given to those who cannot
afford a lawyer. Provision of legal aid varies from province to province. If client cannot resolve fee
dispute directly with lawyer, then client can have her lawyer’s bill reviewed by court official
Ethics- system of moral principles governing the appropriate conduct for an individual or group

Lawyers unethical and unprofessional standards that may result to disbarments includes:

 Disclosing confidential information

 Assisting client in improper purpose
 Lying/misleading/ failing to provide thorough service to client
 Acting for more than one party in potential conflict
 Failing to serve/protect the interests of lcients
 Failing to be candid
 Misappropriating trust funds
 Failing to advance a client’s matter
 Failing to transfer client’s file to successor lawyer
 Breaching trust condition
 Failing to follow the trust accounting rules
 Breaching court order
 Fabricating a court order
 Failing to supervise support staff
 Failing to respond to counsel on timely basis
 Lack of candour in dealing with others
 Failing to be candid with law society

Code of Business conduct – formal statement adopted by company that sets out its values and standard
of business practices

Core ethical values Supporting ethical principles

Trustworthiness Trustfulness ,sincerity, integirty, honesty, loyalty
Respect Respect, autonomy, courtesy
Responsibility Diligence, self restraint
Fairness Justice, fairness, equity
Caring Kindness compassion
Citizenship Voting, philanthropy

Corporate social responsibility – company’s environmental, social, and economic performance and the
impacts of company on its internal and external stakeholder
Chapter 2

Legal positivists – rules enacted by those with authority to do so qualify as law

Legal realists – only those rules that the courts are willing to enforce qualify as law
- Parliamentary supremacy requires that we look to enactments of federal Parliament or
provincial legislatures as the primary source of law
- Law is the body of rules made by government that can be enforced by courts or by other
government agencies

Primary categories of laws are substantive and procedural.

- Substantive law establishes not only the rights an individual has in society, but also the limits on
his/conduct. The rights to travel, to vote, and to own property are guaranteed by substantive
law. Prohibitions against theft and murder as well as other actions that harm our neighbours
- Procedural law determines how the substantive laws will be enforced. The rules governing
arrest, investigation, and pre-trial and court processes in both criminal and civil cases are
examples.
Law can also be distinguished by its public/private function.
- Public law includes constitutional law, which determines how country is governed and the laws
that affect individuals’ relationships with government – criminal law and the regulations created
by government agencies
- Private law involves rules that govern our personal, social, and business relations, which are
enforced when one person sues another in a private or civil action.

Nine of ten provinces and 3 territories have adopted the common law legal system developed in
England. For private matters, Quebec has adopted a system based on French Civil Code.

Civil court, civil action, and civil law are used within our common law legal system and not be confused
with civil code or civil law used in Quebec

Quebec courts rely on rules set out in Civil code to resolve private disputes in that province.

Civil Code provides predictability and recognizes doctrine of good faith. Civil code also applied to tort
cases

Precedent - earlier court decision – a common law system , judges are required to follow a decision
made in higher court in the same jurisdiction.

Stare Decisis or “following precedent” - a system of justice developed in which the judges were
required to follow each other’s decisions. Trial judges would try to avoid the embarrassment of having
their decisions overturned and declared in error so the practice of following precedent became
institutionalized.
Each province in Canada has its own hierarchy of courts. They are not bound to follow each other’s
decisions.

Distinguishing the facts – process judges use to decide which case is the binding precedent; involves
comparing the facts relevant to the issues being determined

Common law courts – three historical english courts where in theory law was discovered in the customs
and traditions of the people
- Common law borrows from roman civil laws which gave concepts of property and possessions;
church laws in relation to families and estates.
- Law merchants are laws developed by the merchant guilds and the source of common law
relating to negotiable instruments such as cheques and promissory notes.

Couty of Chancery / Court of Equity – court administering equity and proceeding according to the forms
and principles of equity

Law of equity – system of law developed by court of chancery

Equity – legal principles founded upon fairness, as developed in court of chancery to relieve the
harshness of the common law; also the value left in an asset after subtracting what the owner owes
Trust – one party holds property for another. Provision in equity whereby one person transfers property
t oa second person obligated to use it to the benefit of third person
Statutes – law in the form of legislation passed by parliament
Legislative branch – consists of parliament which legislates or creates the law, as do each of the
provincial legislatures. Part of government empowered with enacting laws; parliament and legislatures
Judicial branch – court system and the judiciary interprets legislation and makes case law. Part of
government composed of courts and officers of the court
Executive branch – implements the law. The part of government composed of the queen acting through
the PM, cabinet, deputy ministers, and government departments and officials; also known as the crown.
Regulations - supplementary rules passed under the authority of a statute and having the status of law
Confederation – process that united the british colonies in NA as the dominion of canada in 1867
Rule of law – unwritten convention inherited from Britain that recognizes that although parliament is
supreme and can create any law considered appropriate, citizens are protected from the arbitrary
actions of the government

Federal government has exclusive power over matters such as banking, currency, the postal service,
criminal law, and appointment of judges in federal and higher level provincial courts. The provinces have
exclusive jurisdiction over such matters as hospitals, education, administration of courts, and
commercial activities carried on at provincial level.

Most business activities that are carried on within province are governed by provincial legislation or
municipal bylaws including statutes dealing with sale of goods, consumer protection, employment,
workers comp, collective bargaining, secured transactions, incorporation, real estate, and licensing
Federal govt power Provincial govt power
- Trade and commerce - Municipal institutions
- EI - Hospitals
- Taxation - Direct taxation within the province
- Criminal law - Administration of justice within province
- Banking, currency, postal service - Property and civil rights
- Residual power under “POGG” clause - Matters of local or private nature
- When provincial and federal laws conflict, follow federal

Bill – a draft of proposed law introduced before parliament or legislature

Royal assent – the final approval of representative of british crown by which a bill becomes a law in
canada

PASSAGE OF BILL P.37

- Government cannot interfere with basic rights and freedoms except if it is justifiable to do so.
- The constitution includes the charter; together they are the Supreme law of Canada

There are three important limitations on entrenchment of basic rights

- “reasonable limits” – gives the court the power to uphold law even if it violates rights so as to
avoid an unreasonable result
- “notwithstanding clause” – allows each provinces and federal government to override basic
rights contained in section 2 and sections 7 through 15 of charter by simply stating that the new
legislation operates “notwithstanding” (regardless of) the Charter. It can override fundamental
freedom ( freedom of conscience and religion, of thought and belief, of opinion and expression,
and of assembly and association); legal rights (right of life, liberty, and security of person,
security against unreasonable search and seizure, arbitrary imprisonment, and detention);
equality rights ( right not to be discriminated against on basis of gender, age, religion, race, or
color; and guarantee of equality before the law). “sunset clause” is applied if the
notwithstanding clause is invoked, the statue must be re-enacted by that legislative body every
five years. This forces re-examination of decision to override charter after the intervening event
of an election where the use of the notwithstanding clause can be made an issue. New
legislators may not be as willing to pay the political cost using the notwithstanding clause.
- Restriction of operation of Charter to government and government-related activities. The
charter applies only to the government – but where does government stop
CONSTITUTION ACT, 1867
Section 2 of Charter – fundamental freedoms available to everyone in caanda
- Freedom of conscience and religion; freedom of belief, opinion, and expression; and freedom of
assembly and association
Section 3/4/5 protects our rights to vote and to qualify to be elected to House of Commons or provincial
legislative assemblies
Section 6 ensure that Canadians can travel and live anywhere within the geographic limitations of
Canada as well as enter and leave the country at will
Section 7 – the right to life, liberty, and security of person and the right not to have these rights taken
away except in accordance with the “principles of fundamental justice”.
Section 8/9 – prohibits activities as unreasonable search and seizure and arbitrary imprisonment
Section 15 prohibits discrimination in the application of law on basis of gender, religion, race, age, or
national origin and ensures that all people in Canada have same claim to the protection and benefits of
the law.
Section 28 guarantees that provisions of Charter apply equally to males and females. Equality rights
(section 15) can be overridden by notwithstanding clause, but section 28 cannot be overridden.
Section 35 states that Charter in no way affects the rights of Aboriginal peoples of Canada. Section 33
cannot be used to override the protection given to the position of aboriginal peoples of canada.
Section 16 to 22 ensures that French and English have equal status and that rights of minorities to use
those languages are protected.

Constitution Act, 1982 made important changes to Canada’s Constitution. It declared that Constitution
is the “supreme law of Canada”. It eliminated the requirement that any major change involving Canada’s
Constitution had to be made by an act of Parliament of Great Britain

Procedural fairness – rules of natural justice that a hearing must follow

Passage of Charter enabled individuals to challenge laws that denied equal treatment. Both federal and
provincial governments have set up special human rights tribunals authorized to hear complaints of
human rights violations, investigate, and impose sanctions and remedies.
Chapter 3

Administrative law – the rules and regulations governing the function and powers of the executive
branch of government

Alternate Dispute Resolution - strategy that is used as substitute for court action
- Negotiation – decision making is left in hands of the disputing parties to work out for
themselves
 Non-binding so either side can withdraw
 First recourse for people who is in disagreement
 Any legal concession or admission made during these negotiation will not hurt the
parties if litigation results
- Mediation – neutral third party assists the parties in coming to a resolution on their own
 Mediation involves a neutral third party, who assists the parties to come to an
agreement. The Mediator does not make decisions but facilitates the discussion, making
sure that each side has opportunity to put their side forward.
 While parties are not bound by solutions suggested by mediator, once an agreement is
reached it can be enforced just like any contract.
 Mediation depends on cooperation and goodwill between disputing parties
- Arbitration – third party makes a binding decision in the matter under dispute
 Commonly used in resolving disputes arising from international trade agreements
 Arbitrator is chose from pool of trained and certified professionals, often with expertise
in subject matter of the dispute.
 Before hearing takes place, information relating to matter be disclosed by both sides
 Both parties are required to honor the decision

Benefit of ADR
- Retention of control of the matter by affected people
- Delays of litigation can be avoided, faster resolution of the matter with ADR
- Now being offered online

Jurisdiction - legal authority and scope of power.

Courts have both criminal and civil function
OUTLINE OF CANADA COURT SYSTEM P.71

- Lowest level is provincial courts.

- Small claims courts (10k to 50k, depending on province) and family courts (family matters such
as custody) are division of provincial courts.
- Highest trial level court or superior court of a province has unlimited monetary jurisdiction in
civil matters and deals with serious criminal issues.
- Some provinces have retained specialized courts, referred to as surrogate or probate courts,
dealing with administration of wills and estates

Sentencing circles – used primarily at provincial court level for cases involving aboriginal offenders and
victims. Sentencing circles are not courts. They involve interested persons meeting in a circle to discuss
the offence, including sentencing options.

Appeal – formal process whereby a higher court will re-examine a decision made by lower court
Civil litigation – process of one party’s suing another in a private action, conducted in a trial court

PROCESS OF CIVIL LITIGATION P.76

Limitation Period – period of time within which legal action must be taken. To remove ongoing
uncertainty due to memories fading or witnesses become unavailable.
Conflict of Laws – rules used to resolve questions as to which jurisdiction’s laws are to be applied to a
particular issue

Writ of summons – the written judicial order by which legal actions are commenced in some
jurisdictions
Statement of claim (notice of civil claim in BC) – document setting out the nature of complaint and the
facts alleged that form the basis of the action
Statement of defence (response to civil claim in BC) – response by the defendant to a statement of
claim
Counterclaim – statement of claim by the defendant alleging that the plaintiff is responsible for the
losses suffered and claiming back against the plaintiff for those losses
Pleadings – documents used to initiate a civil action, including statement of claim, the statement of
defence and counterclaim, and any clarification associated with them
Applications for directions – interim applications and questions that are brought before a judge (before
trial) for a ruling
Two process of Discovery (pre-trial disclosure of information, consisting of discovery of documents and
examination for discovery)
 Discovery of documents – each party has right to inspect any document in possession of other
party that may be used as evidence in the trial
 Examination for discovery – parties meet before court reports and under oath, are asked
detailed questions relevant to the problem to be tried
Offer to settle – formal offer by either party to modify or compromise its claim to settle the matter
before trial, refusal of which offer may affect costs
Party and party costs - awarding costs are awarded to victorious party in a civil action
Solicitor and client costs – the losing party is liable for all of the legal expenses of the winning party
Damages – monetary payment which are designed to compensate the victim for any loss suffered
General damages – based on estimates, such as when the court awards compensation to litigant for
pain and suffering or for future lost wages
Special damages – calculated to reimburse the litigant for expenses or costs incurred before the trial
Punitive damages/exemplary damages – intended not to compensate the victim but to punish the
wrongdoer for outrageous or extreme behaviour.
Accounting – profits derived from defendant’s wrongful conduct being paid over to the victim
Injunction –stop wrongful conduct or correct some continuing wrong
Declaration - official statement by court on the law applicable to a particular case as an outcome of a
trial.
Judgement debtor – person ordered by a court to pay damages or costs
Judgment creditor - person to whom a court awards damages or costs
Examination in aid of execution – court ordered review of judgment debtor finances to arrange for
payment of the judgment; examination in aid of enforcement in AB

Enforcement of Judgment P.85

Seizure – court authorizes property of defendant to be seized and sold to satisfy a judgment (public
auction)
Secured creditor – creditor who has claim on property of the debtor, giving him priority on that
property over other creditors
Preferred creditor - creditors who must be paid before other unsecured creditors
Garnishment (attachment of debts) – interception of funds owed to judgment debtor and payment of
those funds into court
Class action - lawsuit in which many people join together to sue because they all say they were harmed
by same person or group
Bias – prejudice against or toward one party based on decision maker’s personal interest in decision
Principle of fundamental justice – principles set b tradition and convention that protect the right to fair
hearing by an impartial decision maker acting in good faith to implement a valid law
Prerogative writ – order used to control lower courts
Prohibition – order that prohibits a tribunal from proceeding
Mandamus – order compelling a government to perform its duties
Certiorari – order that quashes and sets aside a tribunal’s decision as void and of no effect
Declaratory judgment – declaration by court as to what the law is in any matter brought before it
Privative clause – terms in statute that attempt to restrict the right of judicial review
Chapter 4

Tort – when one person causes injury to another, harming his person, property, or reputation
 Intentional
 unintentional
Crime - harmful conduct that is so serious that it poses a threat to society generally is said to be criminal
in nature
Breach of contract – failure to live up to the conditions of a contract
Vicarious liability – liability of an employer for injuries caused by employees while carrying out their
employment of duties
Trespass to person
 Assault – conduct that makes a person think he is about to be struck
 Battery – someone intentionally makes unwanted physical contact with another person
Consent (defence) – permission to conduct that would otherwise constitute a tort
Self – defence – law entitles people who are being attacked to use necessary force to defend
themselves
Trespass to land – going onto another person’s property without having lawful right or owner’s
permission to do so
Continuing trespass - building other structure that encroaches on property of another
Trespass to chattels – direct intentional interference causing damage to goods of another. (kicking a
door)
Conversion – one person intentionally appropriating the goods of another person for her own purposes
Detinue - wrongful possession of someone else’s goods
False imprisonment - false arrest, when people are intentionally restrained against their will and the
person doing the restraining has no lawful authority to do so.
Malicious Prosecution is available where charges have been unjustifiably laid. A tort action based on
criminal or quasi-criminal prosecution motivated by ill will toward the accused and lacking reasonable
evidential grounds for proceeding
Private Nuisance – committed when an individual or business uses property in such a way that it
interferes with a neighbour’s use or enjoyment of her property. P.112
Defamation – published false statement that is to a person’s detriment
 Slander – spoken defamation
 Libel – written defamation – easier to prove because its written, premeditated, and more
deliberate
Innuendo – implied or hidden meaning
Defences
Truth or defence of justification – absolute defence
Absolute privilege – second defence
Qualified privilege - most significant defence for businesspeople – exemption from liability for
defamatory statements made pursuant to a duty or special interest
Product defamation
Injurious falsehood – attacks on reputation of another’s product or business
Trade slander/product defamation – must be distinguished from tort of defamation that
involves injury to the personal reputation of the injured party.

TORT CLAIM P.122

When business premises are visited by customer or public, there can be actions for negligence based on
occupier’s liability.

Inducing breach of contract – involves employer persuading an employee of another business to leave
that employment and work for him
Unlawful interference with economic relations – actionable whether to not a breach of contract has
taken place, but there must be some other unlawful conduct associated with the complaint, such as
bribery or defamation.
Intimidation – forces a party to do something that harms it
Intentional infliction of mental suffering - alleged where such threats and harassing behaviour is
involved
Deceit – fraudulent and intentional misleading of another person causing damage
Conspiracy to injure – takes place where two or more persons act together using unlawful means to
injure the business interests of another.
Passing-off – action is appropriate when a business or product is presented to the public in such a way
as to lead the public to believe that the product is being provided by another business.
Wrongful disclosure of Confidential information – private information, the disclosure of which would be
injurious to a business.
Invasion of Person Privacy - form of physical intrusion, surveillance, misuse of image/name, or access to
information.
Evolution of tort law – p.133
CHAPTER 5

Negligence – careless conduct that causes injury/damage to another person or his property.
 A – duty of care is owed to the plaintiff
- Reasonable foreseeability test/ foreseeable plaintiff test – determines the existence of
such duty
- Misfeasance - wrongful conduct is involved, the courts are ready to impose liability of
wrongdoer.
- Nonfeasance – person fails to do something
 B – breach of that duty; breach of the standard of care
- Reasonable person test –used by court in many areas of law to establish standards of
socially acceptable behaviour
 C- Causation
- General test for causation. Plaintiff must prove to court’s satisfaction that “but for” the
conduct complained of, no injury would have resulted
 D- Damage

Remoteness test – to determine whether danger to the plaintiff should have been anticipated, whereas
with remoteness it is the type of injury itself that must have been foreseen
Thin skull rule - principle of torts that we take our victims as we find them, even those with unique
physical or mental conditions
Crumbling skull rule – tort law principle that defendant is not liable for losses that were inevitable
Contributory negligence – permits the courts to apportion the loss between parties. Failure to take
reasonable care, which contributes to the injury complained of
Last clear chance doctrine – the person who had the last opportunity to avoid the accident and failed to
do so is completely responsible.
“No fault” programs – insurance programs compensating people for their injuries whether they were at
fault or not
Non-pecuniary damages – damages based on non-monetary factors such as pain and suffering

Occupier’s liability – people who occupy property have a special obligation to people who are injured on
their property
 Invitee – person coming onto property for a business purpose
 Licensee – person on property with permission but for non-business purpose
 Trespasser – person there without permission
Strict liability – liability even in the absence of fault
Product liability - legal liability of the manufacturer or vendor to compensate buyers, users, and others
injured because of product defect
Circumstantial evidence – testimony not based on actual observation or personal knowledge; evidence
that leads one to infer the existence of other facts
Professional liability – liability owed by persons failing to live up to the standard expected of a
reasonable member of a group with special expertise
Liability insurance – insurance covering loss caused by the negligence of oneself or one’s employee
 It will normally cover negligence but will not cover fraud or breach of trust
Fiduciary duty – person places trust in professional to act in the client’s best interests
Insurance agents - they owe a duty of good faith to customers

TYPES OF INSURANCE p.173

A. LIABILITY INSURANCE
 Umbrella liability- package of several kinds of insurance
 Builder’s risk policy - insurance against liability and other forms of loss taking place during the
construction process
B. Property Insurance
 Comprehensive policies – cover everything except what is specifically excluded.
Property insurance covering all losses not specifically excluded
C. Business Interruption Insurance - form of insurance that compensates the insured for
continuing expenses incurred while the business is not earning income

Subrogation - the right of insurer upon payment to take over the rights of the insured in relation to
whoever caused the injury
Right of salvage – an insurer’s right after paying the insured to sell damaged or recovered goods to
recover losses
CHAPTER 6

Contract - voluntary exchange of promises creating obligations that, if defaulted on, can be enforced
and remedied by the courts

Elements of Contract (to qualify as valid contract)

 Consensus – parties must reach a mutual agreement. An element of valid contract; both
parties must objectively know and agree to its terms through an offer and an
acceptance
 Consideration – element of valid contract; the price one is willing to pay for the promise
set out in the offer. Parties must be committed to do something or to abstain from
doing something
 Capacity – freedom to enter into a contract, which is sometimes limited by law. Parties
must be legally capable of understanding and entering into the agreement
 Legality – object and consideration involved in the agreement must be legal and not
against public policy
 Intention – both parties must be serious when making agreement, and both must
intend that legally enforceable obligations will result from it
Formal contract – one that is sealed by party to be bound by it
 Simple contract or parol contract may be verbal or written but is not under seal
Express and implied contracts –
 Express is one in which the parties have expressly stated their agreement, either verbally or in
writing
 Implied is inferred from conduct of the parties
Valid contract – one that is legally binding on both parties
Void Contract – does not qualify as legally binding because an essential element is missing
Voidable contract exists and legal effect, but one of the parties has the option to end the contract.
Unenforceable contract – one that is required to be in writing and under the statute of Frauds but does
not meet that requirement
Illegal contract – one that involves the performance of an unlawful act. This is void
Bilateral contract – one in which both parties make commitments and assume obligations
Unilateral contract – no exchange of promises. Involves a promise followed by an act
Offer- contains all of terms to be included in the contract. A tentative promise to do something if
another party consents to do what the first party requests
Interim agreement – agreement of purchase and sale in a real estate transaction is an example of such a
contract
Subject-to clauses – a term making a contract conditional on future events
Quasi contracts – a contractual relationship involving a request for goods and services where there is no
agreement on price before the service performed; courts impose an obligation to pay a reasonable price
in these situations; also known as quantum merit
Invitations to treat- an invitation to engage in the bargaining process
END OF AN OFFER P.193

Option Agreement – subsidiary contract, with separate consideration given to offeror in exchange for a
commitment to keep the offer open for a specific length of time
Acceptance – offeree’s intention to commit. An agreement by one party to the terms of the offer made
by another

Postbox rule – a principle that a mailed acceptance is effective when and where it is dropped into a
mailbox
 Offer accepted on website or by electronic communication will also be effective as long as the
basic requirements of acceptance are met. The “I Accept” button makes contract binding.
Ecommerce legislation specifies how time and place of the formation of electronic contracts, including
contracts negotiated via email, are to be determined.

Gratuitous promise – one sided agreement that the courts will not enforce
Past consideration – something completed before an agreement is made; it is not valid consideration
Illegal consideration - promise to commit an unlawful act or to do something against public policy,
which is not valid consideration and will not be enforced by a court
Quantum meruit - a reasonable price paid for requested services; sometimes called a quasi-contract
Promissory estoppel /Equitable estoppel – principle that when a gratuitous promise to do something in
the future causes a person who relies on that promise to incur an expense, the promisor will not be
allwoed to enforce other contractual rights that are inconstant with that promise; the promise can only
be used as a dfence by the promisee; also known as promissory estoppel