The topic this term will be to analyse the policy of a university regarding the code of conduct for non-academic situations, subject to Ontario laws. The student will explain the application of all the legal concepts covered in class to the term paper and propose recommendations regarding the legal issues. You do not go outside the class material covered in class to complete the term paper.
USE FOOTNOTES and appropriate references.
Times Roman, 12 points, Report format
University of Waterloo
Table of Contents
1. Executive Summary with Key Recommendations (1 page)
2. Introduction (4 pages) – explanation of the paper, objectives, ethical issues and methodology – how did you completed the paper steps by steps – including the business relationship with the stakeholders
3. Clause-by-Clause Analysis (8 pages description and explanation of all the clauses of the document)
– Alcohol Use and Education
– Religious Accommodation
– Smoking
– Student Appeals
4. Application of any legal principles (20) covered in class (3 pages) and where these principles are to be found in the agreement;
5. Recommendation (2 pages)
6. Application of the agreement with your problem scenario of your choice, legal corrective measures with provisions dealing with all the elements of the document (2 pages)
7. Document attached.
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Class Notes:
Legal System
Definition
Legal System: A system for interpreting and enforcing the law.
How to resolve conflict? 1) negotiation (where we start to make compliance) decide what we have to give away, ex: a show “Jessica Jones” the wife of lawyer agreed to divorce if she will get 75% of asset 2) mediation (to help parties achieve a resolution also allows individual solve through third party) you decide to proceed before the court, you require to pay the legal cost of the party, mediation helps people to find a better resolution before go to the court. ex: in family law, very few people go to the court because the legal cost and faith you break. 3) arbitration (a settlement based on the conflict a party that to resolve the dispute) keep documents confidential under the arbitration rule; the reason why people don’t use arbitration → first, political power to negotiation when you use mediation; second, when use arbitration people need to convince the legal authority to prove the fact. 4) litigation
example in class: Niqab Canada
Jan 22 Class
Charter of rights and freedoms: guarantees the rights and freedoms set out in it subject only to such reasonable limits recited by law as can be demonstrably justified in a free and democratic society. (fundamental freedoms, your god is as good as my god but not better)
Ex: Bill Clinton cheated on his wife because a “incorporate relationship” with Monika Lewinski, they went to the court and have two choices (test sperm DNA or admit he lied then resign his career)
→ There is a right for her before the court we are bonded by the principle nature justice, everybody will be treated with impartiality
Section 32 states that the Charter of Rights only apply if it’s between the state (government) and its people. (charter does not apply to aboriginals on reserve)
the Charter applies has to be a right way that to be found
is there a violation of right
transfer of burden proof – the state has a) the element is pressing and substantial b) involves minimal impairment c) proportionate effects
Fundamental Freedoms: freedoms of conscience, religion, belief, opinion, association, media.
Freedom is something you are born with
Religious is hard to define, whether it is a superior force that given the message from a appropriate way and this is a series of followers that have been part of that movements in a period of time
Freedom of expression: how much can you go for when you make a statement to express
Democratic Rights:we have labor right and constitutional right to vote if you are a Canadian citizen
Mobility Rights: every citizen of Canada has the right to enter, remain and leave Canada – the right to move and gain livelihood. (meal, medication, drop etc)
Legal Rights: the relationship between the state and yourself when you actually deal with the law, and the right to life, liberty and security. ex: how long the criminal record/criminal justice can be cleaned
Equality Rights: equality between and under law and equal protection and benefit of law
color: ex Oscar no African-American be named on nomination
obesity people needs to pay two seats?
no treatment given to disadvantaged individuals or groups. ex: in Ontario, we are building a school for only boy because we only have girl school. Because women and men have different sense of interests and activities. Men usually have less mature than women so the school for boy can adjust its content.
the state has required to serve both official language, the state has no need to train you.
The Canadian Constitution and the Machinery of Justice
Jan 26 Class
SCC (Supreme Court of Canada)
Appeal FCA CMA ACO
(federal court of appeal) (court martial appeal) (appeal court ontario)
Trial FC TCC CSO SCO (SCC)
(federal court) (tax court of Canada)
Supreme Court of Canada – the final court of appeal, deals with issues of public importance which means it has to have a fundamental/national importance. ex: not the court for a parking ticket. Key fundamental: the independance of the court to show no bias. Court is solving the issues with its own decision as long as it follows the law.
Key independent:
the judge is follows the job security and freedom of expression to apply the law but they have obligation of reserve. (average $300K salary)
we are dissatisfy that we are appeal of decision, there is no political interference in the decision. (ex: discriminates against first nation children on reserves, the first claim filed against Ottawa in 2007)
the judge applies the law and they need to stay inside the framework. No electronic device is allowed in the court. Because the secure of democratic society by using the rule of law such as leave to appeal that you need an actual permission to leave to appeal.
Federal Court of Appeal – is the court that actually hear cases from the trial division. To hear cases from these lower courts such as Federal Court, Tax Court and Martial court, it means to hear the cases on permission from these lower courts and also respect the decisions from tribunals such as CRTC, transport commission, immigration refugee board. ex: aboriginal case if the government finds it’s unsatisfactory the obligation that the courts are actually expressing it’s a way of forwarding delay that allow to create a political settlement.
Federal Cour – deals with all cases that pretend the federal jurisdiction such as immigration or intellectual property.
Tax Court of Canada – deals with all federal tax such as income tax, HST. The court is leads by lawyers. Only the lawyers are reimbursed → large firms want CPA plus law degree.
Court Martial Appeal – deals with military and their rules and regulations.
Court of Appeal for Ontario – is the highest appeal of Ontario, and to hear all the appeals from lower courts of Ontario with permission (1000 maximum).
Court of Justice Ontario – deals with more than 200,000 criminal cases in a year such as drinking driving and also solve millions of provincial offences tickets such as speeding. ex: I’m going hunting this weekend without a permit, and have a tenant who set up a collar to catch the rabbit in the apartment and got three rabbits on last Saturday, And this tenant used frozen rabbits as bait to hunt coyote and he would use the rabbit skin to make a blanket. The tenant is a hunter with permit so this action is not illegal.
Superior Court of Justice – deals with severe criminal cases such as terrorism, drug dealing, hostages but also deals with family cases like divorce.
Jan 29 Class
Small Claims Court – people don’t have fear to claim their right in the small claims court
Step to make a small claim:
The guides apply the rules (maximum $25,000)
Making a claim first
Serving documents – a procedure that confirm you receive the documents
Discovery period – look at the evidence and discuss the witness or evidence is good or not and then decide should take the offer or not to the trial
Go to the trail – where you will be deal with the court case and all the evidences will be presented, photocopy is approved, we permit a certain hearsay (you are presenting another party who is not in court)
Decision from the court – judgement from the court (In some cases, you may appeal the decision)
Cost needs to be allocated
ex: Canada discriminates against aboriginal children on reserve (federal government spent $6 millions in 8 years to avoid the case)
Feb 2 Class
ex: Jian Ghomeshi trial is about “consent”, he doesn’t need to prove anything, only the crown needs to be approved beyond the reasonable result, the defence needs to do is to bring a reasonable defence case – No means “no” doesn’t exist, it has to be a clear yes means “yes”, if the people who has been assaulted said “yes”, the people who take the action or misconduct has the movement. The understand of “yes” from both side. From this case, we can see sometimes law is not absolutely fair or justice, it’s only for solve the problem.
ex: when people go out for dinner or other activity, if one people ask favor once which does not occur any issue, but if he/she ask three times or many times which can be an issue or harassment.
Limitations Act Ontario
What is claim? – claim means a remedy an injury, loss or damage that occurred as a result of an act or omission.
do not apply to certain acts such as Real Property Limitation Act etc
Aboriginal has specific act
Basic limitation period – a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. (if someone owes you money, you have limitation 2 years to claim)
Discovery – the day on which the person with the claim first knew that the injury was caused by or contributed by an act (ex: in OttawaU a blind student walk on stair with ices and a group of guys were looking aside and laughing on what would happen if the blind student will fall or not)
Assaults and sexual assaults ex for Ghomeshi case, the limitation period could be extended based on assault or sexual assault during any time in which the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition.
Deal with issues with legal risk: involves the consent where the risk and an event or circumstance that creates consequences partial, damages or economic losses resulting from legal actions.
ex: CBC has been assumed for allowing what happened with Ghomeshi case, the event has occurred in 2002 and 2003 but CBC has its hand clean which told the public that CBC is a safe workplace without sexual harassment. CBC does not directly involved into this case but the environment will force CBC to face its public damage or legal risk.
4 Steps of Risk Plan
Identify the legal risk
determine which function area is responsible for the event
look at the business decision model (who’s making the decision)
look at the business relationship (who’s involved)
operations and transactions (how’s it occurs and happened)
deals with issue of evaluating the risk
the probability of loss
the severity or the consequences (how bad it is)
make a management plan
retain the risk
transfer the risk (you sell the knife but not responsible for using the knife )
reduce the risk (providing safety notes how to use the knife)
avoid the risk (you don’t sell knife)
implement the plan
carryout the plan,
reassess the plan
Legal Risk example:
Ex: in Ghomeshi case, the witness sent the photo of her in the position where she’s in the bikini in the email with Ghomeshi, but this issue becomes a public Interest, if this photo would be released which will limit the other victims come out to discuss the issue of sexual harassment could be done because if these photo exist then nobody will raise the issue but people would be afraid their life story will be open to the public. The post media “globe and mail” makes the decision for releasing the photo based on it’s public interest or the witness made the choice for sending the photo. Because the way she sent the photo actually sending to the world. There is no problem for the web but any document or photo you send on the web could be an issue to damage your personal property unless send by secure system.
Ex: Mad shooter in uOttawa in Oct 2014 – this story shows when the emergency/incident happen, no lock down button to press in the classroom that students & professor can self-defence which shows no self-defence system in the school, if the professor hide somewhere insteads of protect student, he/she didn’t do anything illegal or wrong because he/she is not guardians. If the professor trains for providing guard, both students and professors need a whole process to follow and get training to do it.
Ex: when the traffic light stop working, if someone volunteers to do the traffic control and the accident happens, the volunteered traffic controller will be liable for it.
Feb 5 Class
Dispute Resolution (Conflict Resolution)
Dispute resolution: resolving disagreements between parties.
Different area of disputes:
labour relations (Canadian olympic committee Marcel Aubut sexual abuse)
delinquent customers: those that don’t pay their bills and limitation of 2 years when the claim was discovered
environmental issues such as pollution, waste control (ex: OttawaU melts the snow using the heat system to remove the snow)
torts for all the wrong things
contracts means obligation resulting from the work
electronic means (email, camera etc) – in the next 20 years accountants will be reduced by 20-40% instead of using softwares
insurance: dealing with the consent where there is an agreement that will determine the coverage of the event costing damages, torts or economic consequences, the key thing is to identify what will be those insurance events for example: health people with great health is the perfect group insurance companies want. (ex: Power Financial Corporation owns Great West Life, London Life, Canada Life, these insurance companies bring profits and pay dividend to Power Financial)
3 types of insurances:
life & disability insurance: when people die, the insurance will pay the taxes for the estate and health and benefits
property insurance (includes fire insurance)
liability insurance: deal with specific problems or wrongdoing
Specific elements of insurance:
deductible: the actual loss where the insured party is responsible
duty to disclose: we need to inform the insurance company of all the necessary facts related to the risk to be insure.
you need an insurable interest: has a finance state that be insured
indemnity means an obligation on this insurer
subrogation is the right of insurer to recover the amount paid on the claim
Insurance Example:
ex: call insurance company to make sure I have at least 2 million third party liability, and increases all the health benefits. (deductible is the loss, the amount insurer should be paid)
Ex: a member from student association came to class one day for explain to increase a yearly $29 health benefit fee to maintain the health benefit coverage students have. The question is why there was a deficit in health benefit in the past 7 years and need a 8% maximum increase annually to cover the deficit. The expenses for running the student federation are from free cell phone, parking, entertainment fee and also the budget for conference meeting or travelling if needed but the yearly financial statement is private.
Core insurance is the minimum requirement in the coverage of given property. In Ontario, the insurance companies require all the properties have to be covered by insurance about 90% of the market value of property. (500K value of house x 90% = 450K, 100K the coverage amount) If below to 90%, insurance company will pay the proportion to that new coverage you have for the value of the house. (250K x 50%, the coverage amount becomes 50K)
Feb 9 Class
CH13 Agency
Agency is the fundamental consent of common law.
What is agency? – Agency is an relationship between a principle and an agent, creating a legal relationship with outsiders.
4 key points:
Relationship can be verbal or in writing. Verbal statement can be a son ask mom to pick up his hockey bag.
The principle is someone for creating a relationship for the specific need such as university.
The agent is the people access the authority such as professor.
Outsiders is anybody outside the relationship between principal and agent becomes the third party.
How to create an agency?
Agency is created through a formal agreement to spell out.
Agency by ratification where an agent will ratify the exceed of the authority as an agent.
Agency by estoppel – It means that there is an relationship created when the principal acts with outsider concluding that agency relationship exists. ex: disappear authority is created if someone has no relationship with principal but called himself an agent. ex: Swarovski in Costco statement shows Costco is not a direct agent of Swarovski, the agent directly from Swarovski sells jewelry to Costco, but Costco will cover the insurance and warranty of Swarovski.
Agency by necessity – in the critical short term period, you require to add on behalf another party, either for health or financial consideration including property damage.
Feb 12 Class
ex: if you have a passcode on the cell, the police needs a search warrant to open it. If you do not have passcode, it means you do not create a privacy statement.
Authority
What is authority? people are accessing when they are in an agency situation.
Actual authority
express: verbal statement
implied:
the agency exist because of the environment which the agency is executed. ex: agent in the security guard.
it is necessary to carry out your express of authority ex I’ve been trained on how to teach accounting
by virtue or custom or practice your own authority
Apparent authority: it’s the power that agent appeals to have an outsider because of the conduct of the agent or the principle. ex: im in the accounting firm and developing a proposal for auditing of these firms and get pay for this service. Estopped means you cannot change the statement you express.
The duty of the agent
Fiduciary duty means you have duty to serve your principle with the best interests that is required within the law
Make full disclosure of all materials element
Avoid conflict of interest like serving two masters
Avoid using the principle property ex:using Internet or photocopy or other assets (pen) for personal need at work
Making secret commission or profit ex: can’t make secret deals in the back
Cannot compete against the principle
Need to respect ethical conduct
The duty of the principe
To pay the agent includes commission
Excess in the execution of test
To provide the appropriate tools
To provide the reasonable training
To reimbursement the reasonable expenses
To indemnify the reasonable losses
The Four liabilities
When the agent is inside the authority, the principle is fully liable.
The principle is liable for the apparent authority given to an agent.
If the agent exceeds that authority, the principle can ratify at any given time. → breach of warranty of authority
Anything the agent does outside the authority, he is liable for on a personal base.
CH 14 Partnership
Definition – a relationship that subsists between people (union, individual, parties) to carry on a business (trade, occupation and profession) in common (brings money or materials) with a view to profit.
Not a partnership by nature
property that own together such as marriage couple buy house
sharing gross returns (not net returns) does not
sharing payment if we pay out of the profit or reimburse you a loan
Meaning of “firm” → partnership
Relations of partners to persons dealing with them
every partner is an agent of the firm
partners bound by acts on behalf of firm ex: a partner buy an expensive photocopier every partner has liability on that
one partner pledging firm money for irrelevant cause does not make liable other partners.
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