LEGL 210: Midterm Prep – Page 1 Coil Bound Questions Answered

Where do legal rules come from? Understand how legal rules are made, and which rules are
“superior”

Law – is the body of rules made by governments that can be enforced by the courts or by other
government agencies

Legal rules come from “common law” – judges merely applied the law or rules that were
already in place in the local jurisdictions.

How to predict the outcome of a legal dispute – Common Law predictability is determined by
precedent-making cases. Common Law jurisdiction are the binding aspect of the law and
therefore, if a particular case qualifies as a precedent the judge faced with that precedent must
follow it.

The Supremacy of Parliament – A stature enacted by Parliament becomes the definitive law of
the land overriding any other rule or law, such as common law. In Canada, this is now subject
to the operation of the Chart of Rights and Freedoms.

Outline how a parliamentary bill becomes law – they go through a process of introduction in
the form of a bill, debate, modification, and approval referred to as first, second and third
reading and then receives royal assent from the Governor General or Lieutenant Governors.

Stare Decisis – Theory of Precedent

The main advantage to stare decisis (or the process of following precedent) is the stability and
predictability that it provides for the legal system. It is not necessary for a litigant to go to court
to find out how the law will be applied in a given situation. The precedent case supplies that
information, thus the parties can avoid the cost and difficulties associated with a court action.
Another advantage to the system is that where there is no precedent covering a particular
situation before the court, the court then is free to make such precedent.

The main dis-advantage of the stare decisis process is that, as the number of precedents grows,
the courts are of society alter. The courts find themselves applying rules established centuries
earlier which *other than the fact that they form a precedent) may have no justification for
being applied in a modern situation.
 LEGL 210: Midterm Prep – Page 1 Coil Bound Questions Answered

The difference between civil law proceedings and criminal proceedings

 LEGL 210: Midterm Prep – Page 1 Coil Bound Questions Answered

What is the constitution? To whom does it apply? How can you challenge a law pursuant to
the Constitution?

Constitution: Superior Legislation - assigns certain areas of government control to either the
federal or provincial governments for their exclusive jurisdiction.

1. Charter of Rights & Freedoms (1982)

a. Introduced by Pierre Elliot Trudeau
2. British North America Act (1867)  renamed: Constitution Act

What if the government passes bad legislation

No general oversights by courts. Aka the courts done care. Courts only get involved if someone
complains.

If someone complains – there is a possibility of going to court  you must argue that the
Constitution Act of 1867, or the Charter of Rights and Freedoms haven’t been followed OR
both.

Successful Complaint – the result is the law is erased. Aka – declared invalid, declared
unconstitutional, struck down, declared invalid, ultra vires.

Standing – only persons with standing can complain about a law. This means you have real
direct personal interest in the outcome or groups of people affected by the law.

Constitution Act 1867 – Section 91 and Section 92: divide powers between Federal and
Provincial governments
 LEGL 210: Midterm Prep – Page 1 Coil Bound Questions Answered

How does human rights legislation work. Know when it applies, and how.

Note: If you don’t find the discrimination on the list it isn’t illegal.

Human rights violations are dealt with by utilizing “tribunals” not the courts.

Categorical: Discrimination publications/ notices, goods and services, accommodation, tenancy,

employment
Type: race, religious beliefs, color, gender, gender identity, gender expression, physical
disability, mental disability, age, ancestry, place of origin, marital status, sources of income,
family status, or sexual orientation
LEGL 210: Midterm Prep – Page 1 Coil Bound Questions Answered
 LEGL 210: Midterm Prep – Page 1 Coil Bound Questions Answered

How does a court supervise administrative decisions (i.e. decisions of boards/ commissions
and tribunals).

Dispute Resolution: Tribunals: efficiency & expertise, courts are busy therefore we have
tribunals such as human rights commission, labour board etc.

Tribunals & courts

- Courts have a supervisory role

If you don’t like the decision of the tribunal, you can appeal the decision to the courts. It is rare
to change appeals: only if legislation allows the appeal. Courts are limited i.e. out of control of
the courts.

If you cannot appeal, courts are limited to judicial review They look at the process and if not
followed properly the courts will ask for decision to be done over. This doesn’t mean the
outcome will be any different for client.

COURTS REVIEW:

“natural justice” aka fair procedure and example of unfair procedure would be both parties not
having a change to discuss their position.

“Discretion” i.e. has discretion been exercised properly? Legitimate, justifiable reasons for
decision.

“Jurisdiction” – do the tribunals have authority

 LEGL 210: Midterm Prep – Page 1 Coil Bound Questions Answered

Know how the litigation process works – general procedures, differences between Provincial
Court, Court of Queens bench and Albert Court of Appeal; the role of lawyers, Alternative
Dispute Resolutions (ADR), costs and collection of your award.

Litigation Process – i.e. starting a lawsuit

1. Statement of claim + Money

a. File a court order to start court proceeding because of limitation (this established
a time-line) then leads to negotiated settlements.
2. Defendant files a statement of defence
3. Mandatory mediation – “disclosure” : provincially required.

This all happens before the case goes to trial.

Alternative Dispute Resolution (ADR) – Resolving Disputes

Negotiation – Court Process – Tribunal

Start at the courts: file a court order to start court proceeding because of limitation (this
established a time-line) then leads to negotiated settlements.

Negotiated settlement could result in contract or consent order.

Consent order –. Judges sign off consent orders; these are not ordered by the court. This is a
negotiated settlement

Types of Negotiation (ADRs)

1. Negotiate – parties only

2. Mediation – (interpersonal problems): Neutral 3rd party involved. Can facilitate a
resolution without a bias. There is an incurred cost for a mediator.
3. Judicial Dispute Resolution – unique to Alberta. Extremely hard to book time because of
popularity. The neutral 3rd party is a judge (legal expert). Historically there was no cost,
but changing January 2019 it will be $600. This is for complex legal negotiations.
4. Arbitrator – gives a binding decision. 3rd party who tells you what to do. Typically, not a
judge, but has special experience with topic. Large costs involved.
5. Trial
LEGL 210: Midterm Prep – Page 1 Coil Bound Questions Answered
 LEGL 210: Midterm Prep – Page 1 Coil Bound Questions Answered

Tort – Law what is it, and how does vicarious liability work.

Torts: Civil law – a cause of action

Tort – “A wrong” – causing harm because of some kind of behavior that we have determined
should be legally unacceptable. Often the result in obvious harm. (e.g. Assault + Battery).

Note: if a crime is committed it is common that a tort has also occurred.

Tort Law – general and special damages.

- Harm someone’s reputation (defamation) -
- sometimes a personal invasion can be conserved harm (being in someone’s space

Vicarious Liability

Vicarious Liability – legal liability through the actions of someone else. Individual has done
nothing wrong, but has a connection with someone who has committed a tort and takes the
liability.

Example 1
- driving a car by non-owner  Insurance Act imposes vicarious liability because owner
gave consent to drive the vehicle. It ensures that the person who is hurt can claim
insurance.
Example 2
- Employee commits a wrong during employment  if employer profits from the actions
of the employees, then they are responsible for their employees actions.
o e.g Club Bouncers – are the activities included in the job requirement?
 If job requirement is to bounce people then, employer is responsible.
 Employer could also do wrong with lack of training and have their own
liability as well as vicarious liability.
 LEGL 210: Midterm Prep – Page 1 Coil Bound Questions Answered

Intentional Torts – A wrong

Battery – the application of force/ Physical contact without consent.

Note: when a battery is committed (injury and damage are not required) as long as you can
prove the following about the battery:
1. Physical contact was made (accidental does not count).
2. It was without consent

Defense in civil court note: Self-defense is a reason to get out of this situation but must be a
real imminent threat.

Assault – Threat of physical contact without consent. Real and imminent threat.

Note: when a assault is committed you need to prove the following about the assault:
1. Threat of physical contact without consent
2. Real and imminent threat.

Trespassing (land) - *has to be real-estate

A person does not need to cause harm to trespass, it is enough that someone is in your space.

To prove someone is trespassing it must include:

- Physical presence on someone else’s real estate.
- It can be a transient or permanent presence such as a person, object or structure you
control.
- (e.g. ball going into neighbours yard  you will need neighbours consent or implied
consent to retrieve ball).

To defend yourself whilst trespassing you will need the following:

- Consent to be on someone else real estate
- You need to be aware of where you are and “I don’t know” is not a defense.

Special Permissions based on By-Laws for service people/ agents of crown – slightly different
from consent
- City officials who collect gas readings off of monitors
- Police officers

Note: you are entitled to remove a trespasser from real estate. If you ask a person to leave but
they don’t, you can use physical force that is reasonable.
- This can be problematic: what if they do not leave? Like said above, you can use
reasonable force.
- Door bells: imply consent, but once you ask for someone to leave they have to leave.
 LEGL 210: Midterm Prep – Page 1 Coil Bound Questions Answered

False Imprisonment – False Imprisonment is a restraint without consent that is unlawful.

Physical Restraint – limiting the ability of a person’s movement

- Locking someone in a room
- Bus driver not letting someone of the bus
- Without consent

Psychological Restraint –
- A person feels compelled to stop because if they don’t stop, they will feel that it will
cause trouble for themselves if they tried to leave.

Nuisance or Tort of Private Nuisance –

Is often dealt with through by-laws instead of lawsuits. Cheaper and a fine under a by-law is
responsible by the city to make sure the individual pays and is following the rules.

Requires: Substantial interference  Prove: interference with the use & enjoyment of your real
estate

Nuisance needs to be substantial for the courts to respond. The courts will feel ok awarding
damages if the problem is sufficient enough.

Courts look at:

1. Timing
2. How long
3. Nature & effect
4. Character of neighbourhood
5. Impact on person complaining

Examples of nuisances: Noise complaints, structures; blocking sunlight, blocking views,

structures that cause damage; water pooling into neighbour’s yard from poor drainage, tidiness/
garbage, traffic disruption, smell, fire pits; particulate.

Continuing Nuisance – might want to start a lawsuit because calling the city might not do much.

Case example: neighbour has bees, if you complain the neighbour could argue that you knew that
there were bees before you moved in. The courts will not take kindly because everyone has the
right to enjoy their property.
 LEGL 210: Midterm Prep – Page 1 Coil Bound Questions Answered

Defamation

Defamation – any false statement that is communicated and is damaging to the reputation of
another.

Examples of Communication: emails, social media, traditional forms. This information that is
being put out into the world has to go beyond the two immediate parties.

Innuendo – implying through a comment that could call a person’s reputation into question
without directly saying it. Could mean something that is potentially damaging.

Libel – written form of defamation

Slander – Spoken form of defamation

Defamation Defenses –

1. Absolute Privilege: only occurs in houses of parliament and courts.

a. 100% free to say what you need to say without consequence

e.g. two politicians fighting in parliament are allowed to crudely speak their mind, however
outside of parliament/ courts the statements made will be considered defamation.

2. Fair Comment: businesses serving the public “out there” in the public eye. The consumer
is allowed to give an honest and fair comment/ Honest assessment of experience.
a. If you comment out of malice; this is undermining a business and will drive
customers away.
e.g. Kitty Chans photography business “Amara Wedding” was defamed online. This case is an
example of the dangers of using the internet to publish information without proper regard for its
accuracy. Kitty Chan was awarded $75k and 40k in punitive damages because of the degree of
malice.

3. Argue what you communicated is true. (Best defence)

4. Quality Privilege: needs two things

a. Duty or obligation
b. No malice
e.g. Duty or obligation – structured context: a student emails prof in April to get a reference
from fall term. Professor does not give good reference to employer because he/ she mixed the
student up for another student that was awful, this was an honest mistake.  It was in the
professors duty to draft the reference and no malice was committed because it was an honest
mistake.

5. Sorry Defence – only applies to traditional media

a. A way for media to back track to avoid legal problems