COMM 315 - Notes

COMM 315 – Business Law and Ethics Notes Lesson 1 – Introduction to Law and the Quebec Legal System Introduction to Law - What is law? o A set of rules and principles o To govern conduct of society o Promotes goals of peace, order, and good governance o Written: if laws are not in written form, there is a risk of unfairness in application o Adopted by government (lawmakers) - Law and justice o Justice is the process of applying the law o Law is a set of rules to maintain order and provide fair treatment to all  Why do we respect the law: faith in lawmakers or fear of punishment  Is the law applied fairly to all? o Law is enforced by the courts (judges) o Judges need to be respected in order for people to have faith in their decisions o Justice has to be perceived by the public as rendered fairly  Is the law always perceived fair? - Law and ethics o Ethics are moral values, our personal views on what is right and wrong o Ethical principles are not decided by government lawmakers o Society’s ethical views appropriate behaviour and acceptable conduct changes over time o Changes in ethical beliefs help foster changes to the law o Laws are often slow to change since lawmakers must deal with conflicting ethical views of their constituents o Laws set out defined standards and are enforced by the courts  Example: law sets the legal minimum wage rate o Ethical principles on the other hand are subjective in nature and are not enforced by the courts  Example: ethics asks, “is the minimum wage rate fair?” Public, Private, Civil, and Common Law - Private vs. public law o Private law: deals with the relationships between persons  Contractual responsibility  Non-contractual responsibility  Does not involve the government acting in its official capacity  Private law does cover he actions of government where the government is acting in a commercial capacity, i.e., government is an employer or is purchasing goods and services

 Breach of private law: compensation for bodily. Moral, and material injury (damage) o Public law: deals with the relationship between the government acting in an official capacity and its citizens  Enforcement of citizens’ duties to the state, i.e., criminal law and income tax  Breach of public law: punishment  This course only deals with issues of private law - Civil vs. common law o Civil law: deals with matters under Quebec provincial jurisdiction  Historically based on the private law use in France prior to the 1760’s  French law continued to apply after the colonies were ceded to Britain  All general principles of law are collected and codified into one rule book known as a Civil Code  When faced with a legal question, lawyers and judges refer to:  First: Civil Code  Second: Jurisprudence (previous court cases) o Common law: deals with Federal laws that have common application all across Canada, also applies in all other Canadian provinces for matters under provincial jurisdiction  Historically based on the British law system  Under the British system general principles of law were not codified into a Civil Code  When faced with a legal question, lawyers and judges refer to:  First: Jurisprudence in order to determine how judges treated similar situations in the past  Second: Statues (law) would be examined - Substantive vs. adjectival (procedural) law o Substantive: sets out the specific rights and responsibilities that persons are bound by  Example: Civil Code o Adjectival/procedural: sets out rules on how substantive laws should be applied  Example: Code of Civil Procedure sets out the steps to take and the order to file documents when instituting a lawsuit o This course only deals with issues of substantive law Litigation - The formal procedure by which a person takes a court action against another person to claim damages / recover a debt / enforce an obligation o Litigation is also referred to as a lawsuit - Creditor: the person to whom a debt is owed - Debtor: the person who owes a debt / obligation to another - Plaintiff: the person who initiates a lawsuit (litigation) against his/her debtor - Defendant: the person against whom the lawsuit is taken - Class action

 Non-contractual responsibility (civil responsibility) - Sources of laws o Sources of law available to assist judges in rendering a decision  Statues: written laws adopted by the government  Jurisprudence (case law): court judgments, decisions rendered by judges interpreting statues or making new law if the statues are silent  Doctrine: articles/essays written by legal experts analyzing particular areas of legal concern, especially relevant in areas of law which are new and emerging  Example: internet transactions (duties, responsibilities, jurisdiction)  Example: liability for defamation on social media, cyber bullying  Custom and usage (tradition): commonly accepted historical practices used in a particular community Introduction to the Quebec Legal System - Quebec court system o Trial court (court of first instance)  Court of Quebec  Quebec Superior Court o Quebec Court of Appeal o Supreme Court of Canada Trial Court - Characteristics of the Trial Court o Cases heard by one judge o In Quebec, civil law court cases have no trial by jury o Plaintiff vs. Defendant o Approximate four-year time frame from the date the lawsuit is filed until the judgment is rendered - Division of authority between trial courts o Court of Quebec:  Judges appointed by the provincial government  Claims for an amount greater than $15,000 and less than $85,000  Small claims court: a branch of the court of Quebec  Claims for an amount of $15,000 or less  Plaintiff must be an individual or company with 10 or less employees  There is no appeal, no lawyers, judge effectively acts as arbitrator o Quebec Superior Court:  Judges appointed by the federal government  Claims for an amount equal or greater than $85,000

Quebec Court of Appeal - Characteristics of the Quebec court of appeal o Cases heard by three judges and decision by majority not by unanimity o Appellant (the party who is appealing the Trial Court decision) vs. Respondent o Approximate 3-year time frame from the date the Trial Court rendered its judgment o Appeals from both the Court of Quebec and the Quebec Superior Court o Grounds for appeal: judge made a material error in interpreting the facts or the law o Right to appeal:  Automatic right of appeal where the object in dispute in the Trial Court is equal or greater than $60,000  With permission from the Quebec Court of Appeal in all other cases Supreme Court of Canada - Characteristics of the Supreme Court of Canada o Cases usually heard by all nine judges and decision by majority not by unanimity o Appellant (the party who is appealing the Quebec court of appeal decision) vs. Respondent o Approximate 3-year time frame from the date the Quebec court of appeal rendered its judgment o Hears the appeals from the Courts of Appeal of all provinces o Grounds for appeal: judge made a material error in interpreting the facts or the law o Right to appeal:  In all cases, only with permission from the Supreme Court of Canada  As a general rule, the Supreme Court of Canada will respect the decisions of the Provincial courts of appeal  The Supreme Court of Canada may agree to hear a case where a new law, that the Supreme Court has not ruled on before, is at issue  The Supreme Court may agree to hear a case involving issues of public order and national importance and those dealing with potential Charter of Human Rights infringements  The amount of money in dispute is NOT, in and of itself, a relevant factor in deciding in the Supreme Court of Canada will hear a case Lesson 2 – Personal Rights (Part 1) Introduction to Charter of Human Rights - What is a charter of human rights? o The goal of the Charter of Human Rights is to balance the rights of individuals in relation to the rights of society  While the state should not overly control or repress its citizens, citizens can not on the other hand be totally free to do what they want  There needs to be a degree of order in place

 There are three degrees of fault: negligence (simple negligence), gross negligence, and intentional fault - Fundamental freedoms (s.3) o Every person is a possessor of the fundamental freedoms including the following (the list is not exhaustive):  Freedom of conscience (beliefs)  Freedom of religion  Right to practice religion openly  Freedom of opinion  Freedom of expression  Does not give you the right to defame (liable and slander) another person  Freedom of peaceful assembly  Freedom of association  If you are released from prison on parole, you may be prohibited from associating with convicted felons  There are however limitations on your freedoms  You can not exercise your fundamental freedoms in such a way as to unjustly impair the rights of society - Dignity, honour, reputation (s.4) o Everyone has the right to the safeguard of their dignity, honour, and reputation  Defamation of character: one can not say, print or distribute information about people that is untrue and will damage their reputation  Example: blogging on social media - Private life (s.5) o Every person has a right to respect for his private life  What does this right entail?  How would you define private life?  Is what you do in your home private life?  How about what you do outside your home?  Court case example: One may not take a photograph of an identifiable person in a public place and distribute/sell the photograph without the subject person’s consent - Property (s.6) o Every person has the right to the peaceful enjoyment and free disposition of their property except to the extent provided by law  You can do what you want with your property  You can own property (house, car) and no one can take it without your consent  Expropriation by government must pay fair value  Exception: gun ownership – you need legal permits to own and can only sell to someone with permits  Exception: zoning – need legal permission to build, make use of real estate - Home (s.7)

o Nobody can enter your home without consent (you do not have to own your home for this to apply, you can be renting)  Reasonable grounds: Emergency responders (firefighter, police) can enter your home without permission if they deem it an emergency  If they find anything illegal in plain sight they can charge you with a crime (need search warrant to investigate further)  Search warrant: when granted by a judge, police can enter your home without your permission and search premises - Confidential information (s.9) o Confidential information: Every person has the right to non-disclosure of confidential information  Example: medical records, employment records, bank records, personal information such as age, religion, and marital status  Persons in possession of confidential information about you can not disclose this information to other people without your consent o In certain situations, third parties are entitled to request some confidential information from you in order to assess your eligibility or suitability  Examples would include employers and residential landlords who wish to assess skills, educational qualifications and/or financial solvency etc. If you refuse to provide this information, you will not get the job/apartment o Law enforcement can request your ID anytime - Professional Secrecy (s.9) o Professional secrecy: No person bound to professional secrecy by law, nor priest or minister of religion, may release, even in a court proceeding, confidential information revealed to them by reason of their position of profession, unless the person who confided this information authorizes the release o Example: if you can not tell the truth to your lawyer, after you have been arrested, how can your lawyer prepare a proper defense? o Exception: Hospital/health care professionals – in certain situations are required to report gun shot wounds or suspicious injuries to an infant o Note that a judge will stop a witness from divulging confidential information during his/her testimony - Reasonable limits (s.9.1) o In exercising their fundamental freedoms and rights, a person should maintain a proper regard for the democratic values, public order, and general well-being of the citizens of Quebec  In this respect, the scope of the freedoms and limits to their exercise may be fixed by law  The rights of the individual are not absolute, and an individual can not exercise his/her rights in such fashion as to cause unreasonable inconvenience to the community o The rights of the community are not absolute and the community can not exercise their rights in such a fashion as to cause unreasonable inconvenience to the rights of the individual

o No one may through discrimination inhibit access of another to public transportation or a public place, such as a commercial establishment, hotel, restaurant, theatre, cinema, park, camping ground or trailer park, or his obtaining the goods and services available here  Example: Restaurants can refuse to serve someone for health or safety related reasons o Loitering: a shopping centre invites the public to come in and shop. A shopping centre is not simply a place where you go to spend the day to stay warm in the winter and cool in the summer o Nuisance: obligation not to cause undo disturbance to others  Example: Parents of a crying baby can be asked by the movie theatre management to take their baby and leave o Think about this:  Example: must a very large passenger purchase two airline seat tickets?  What about very tall people?  Is this discrimination under section 15? - Employment (s.16, 18.1, 20) o Section 16: no one may practice discrimination in respect of the hiring, apprenticeship, duration of probationary period, vocational training, promotion, transfer, displacement, laying off, suspension, dismissal, or conditions of employment of a person or in the establishment of categories or classes of employment o Section 18.1: No one may in an employment application form or employment interview require a person to give information regarding any ground mentioned in section 10 unless:  The information is useful for the application of section 20  Or is useful for the implementation of an affirmative action program in existence at the time of the application. An affirmative action program is discussed in section 86 of the Charter and gives a preference to those groups who have been historically discriminated against in the past – especially women and members of visible minorities o Section 20: A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment is deemed non-discriminatory  Section 10 list – are there any aptitudes listed there that could be considered aptitudes required for employment?  How about language? Is the ability to function in French a relevant aptitude required for employment in the province of Quebec?  Section 20 also creates exceptions for charitable, religious and non-profit institutions which we will not focus on in this course  What about being asked to provide a photograph of yourself as part of a job application? Is this a Charter violation? What about LinkedIn profile photographs? - Equal salary (s.19)

o Every employer must without discrimination grant equal salary and wages to his personnel who perform equivalent work at the same place o Why does the law refer to equivalent work as opposed to equal work? Which would be fairer for the employee, equivalent or equal? - Criminal records (s.18.2) o No one may dismiss, refuse to hire or otherwise penalize a person in their employment owing to the mere fact that they were convicted of a penal (provincial laws) or criminal offence  If the offence was in no way connected with the employment or if the person has received a pardon for the offence  If you have received a pardon, you are not required to disclose the fact that you have a previous conviction in a job interview or application. Members of the public, such as employers, will not be able to have access to your criminal record  If you have received a pardon, you can not be asked in an employment interview whether you have ever been arrested. Being arrested does not mean you were ever convicted  When you sign a job application form there is usually a printed paragraph on same which states that you authorize the employer or its agent/representative to verify all of the facts and information that you have written on the form. You are therefore authorizing the release of confidential information including a verification of your criminal record  Question: what does “in no way connected with the employment” mean? Who determines whether your criminal conviction is in any way connected to your current employment or the job that you are applying for? - Risk determination factors (s.20.1) o In an insurance or pension contract, a social benefits plan, a retirement, pension or insurance plan, or a public pension or public insurance plan, a distinction, exclusion or preference based on age, sex or civil status is deemed non-discriminatory where the use thereof is warranted, and the basis thereof is a risk determination factor based on actuarial data  Example: Women live longer than men. Young women drivers (under 25 years old) have better driving records than young men in the same age group. Therefore, it is not discriminatory to charge men higher insurance premiums o In such contracts or plans (insurance and pensions) the use of health as a risk determination factor does not constitute discrimination within the meaning of section 10  Example: For smokers, data shows that they have a higher risk of getting ill – therefore they will pay higher life and medical insurance premiums than will non-smokers - Special and interpretative provisions o When a complaint has been made with the Quebec Human Rights Commission, the Commission after investigation has the authority to render a

o The Civil Code of Quebec is a collection of laws that deal with property, ownership, and civil rights  Introductory provisions of the CCQ: enjoyment and exercise of civil rights  Good faith & reasonable manner o Every person is bound to exercise his civil right in good faith. No right may be exercised with the intent of injuring another or in an excessive or unreasonable manner and therefore contrary to the requirements of good faith o The CCQ creates an obligation to act in good faith. Do people always act in good faith? - Renouncing rights (CCQ s.8) & Public order (CCQ s.9) o A person may only renounce the exercise of his civil rights to the extent consistent with public order. In the exercise of civil rights derogation may be made from those rules of this Code which supplement intention but not from those rules of this Code which supplement intention but not from those of public order  Public order: where a law is deemed in the best interest of society, all parties must respect it and you can not voluntarily give up your rights under said law  Laws of public order protect the weaker party who does not have bargaining power. Example of Quebec laws which are not public order: The Quebec Charter of Human Rights, residential leasing legislation, Consumer Protection Act Legal Principles - Affirmative action o A hiring program that provides an advantage to specific groups of persons including women and members of visible minorities, who have historically been disadvantaged in the job market  Why should a company adopt an affirmative action program?  Ethical duty to help correct historical wrongs  To ensure that work force better reflects the ethnic and social diversity of the community  Promote company’s public image  Benefit from government incentive programs - Reverse discrimination o A possible legal recourse where an affirmative action program has not been properly applied  Example: A male candidate sees a less experienced female colleague promoted above him – is this reverse discrimination?  If the female colleague had the required skill set to perform the job and if the employer had a formal affirmative action program in place and properly applied it, then this situation should not be considered reverse discrimination. Just because

the male candidate may have stronger “objective skills and qualifications” does not guarantee him the promotion where the company has an affirmative action program Lesson 4 – Personal Rights – Cases How to Analyze a Court Case - Name of parties - Facts of case - Legal issues in dispute - Position of each party - Court judgment (decision and reasons) Commission Scolaire Marguerite Bourgeoys v. Singh Multani: Quebec CA - The facts o Parties involved: school commission and a boy and his family o Facts: A 12-year-old boy goes to school and a knife falls from his clothing  Boy was told he cannot bring a knife to school  The boy said this is a Kirpan, an integral part of his religious heritage - The legal issues o School says the knife could be used as a dangerous weapon and they have a duty to ensure that the school is a safe place o Family claims that this is a religious artifact and freedom of religion is protected under section 3 of the Quebec Charter o School board refused to allow the Kirpan – it is a knife  School board proposed that the boy can wear a ceremonial small Kirpan around the neck o Is it a knife or a religious artifact? Or both?  It is part of a religious practice (Sikh men wear religious attire that includes the Kirpan)  It is also a 20cm steel knife – it cuts its way out of the clothing in the first place  The boy in question is not a troublemaker o The wearing of a Kirpan is a recognized religious practice, although not every Sikh man does so o The exercise of fundamental freedoms does not enjoy absolute protection o A public organization cannot accept requests or actions that go against public order and the well-being of the community. There is a greater likelihood that the enjoyment of a freedom that contains within it an actual threat to the security of others will rightly be restrained, because it may represent an infringement on the fundamental liberties of others - The judgement o The court of appeal discusses the earlier judgements of the Superior Court and of the school board o Quebec Superior Court: Overturned school board ruling – the boy can wear the Kirpan as long as he complies with six conditions:

 2. The employer adopted the test in good faith and for a legitimate work-related purpose  3. It would not be possible to employ anyone who could not meet these minimum skill sets (could not pass the test) without the employer experiencing undue hardship - The judgment o Supreme Court of Canada: The evidence showed that men and women physically respond differently to aerobic training. Men through practice and repetition can improve their aerobic performance greater than women can. Since the test did not analyze the aerobic performance of men and women separately, the test is inherently flawed and can not be relied upon. She gets her job back o It is interesting to note that the Court of Appeal of BC commented that allowing Ms. Meirorin (the firefighter) to win her case might create reverse discrimination, setting a lower standard for women than for men , and might discriminate against men who could meet the standards of women but not the standards of men Therrien v. Min. of Justice - The facts o Parties: Judge Richard Therrien v. The Government of Quebec o Therrien, soon after being appointed judge, was dismissed after it was revealed that he had been convicted of a criminal offence relating to the 1970 FLQ October Crisis and served time in jail  After release from jail, he went to law school and was admitted to the Quebec Bar to practice law  In 1987 he applied for and received a pardon o In 1991 and again in 1993, he applied to become a judge of the Court of Quebec  Both times when interviewed for this position, he mentioned his pardon and his troubles with the law. In both instances, he was not appointed judge  He applied a third time in 1996 and did not mention his criminal past in he appointment interview process  He was appointed judge, but as soon as his criminal past came to light, he was dismissed - The legal issues o Therrien protests being fired: section 18.2 of the Quebec Charter states that one can not be refused a job or fired because of a criminal conviction if one has received a pardon for the offence  He therefore claims discrimination under section 18.2 of the Charter - The judgment o The Supreme Court of Canada ruled that the Judiciary is one of the three branches of the Government. The position of judge is therefore not a Job, but an Office. While the government pays the judges salary the judge is not an employee of the government and does not take orders from the government

 Section 18.2 of the Charter therefore does not apply to a Judge  The court furthermore stated that judges are held to a higher standard than ordinary persons, and if a judge appears to have not respected the law, this undermines the public confidence in the court system Syndicate Northcrest v. Amselem - The facts o Parties: Moise Amselem and others v. Northcrest – Condominium co-owners association o Succot (Sukkot) is a religious Jewish festival lasting nine days during which time men eat and sleep in outdoor huts called Succahs o Since the Appellants lived in a condo complex they needed to obtain permission from the Condominium co-owners association to build Succahs on their individual balconies o The Condominium co-owners association refused to allow the Appellants to build Succahs on their balconies - The legal issues o Would celebrating Succot and building a Succah, while a recognized Jewish religious practice, unduly prejudice the rights of the condominium owners as a whole o Did the Appellants give up their rights to build Succahs by signing the Co- ownership agreement that gave the decision power over the use of exterior spaces to the condominium association - The judgment o Quebec Superior Court: rules no Succahs can be built on the balconies o Quebec Court of Appeal: no Succahs can be built on the balconies o Supreme Court of Canada: This case deals with freedom of religion. The court must balance the rights of the Appellant under section 3 of the Charter, with the rights of the condominium owners as a group under section 6 of the Charter. This is an application of the principle of reasonable accommodate as set out in section 9.1 of the Charter  Is there proof that building a Succah would lower the value of the condominium building? No such proof was made by the condo association  Supreme Court: the potential annoyance of a few Succahs for nine days a year is trivial especially if they are built in a way not to block doors, windows, and fire escapes o Majority decision (5/9 judges): The building of a Succah is a religious practice protected under section 3 of the Charter. Under section 9.1 of the Charter no proof has been made to show that building Succahs will unduly prejudice the rights of the larger community (all condo owners as a whole) o Minority decision (4/9 judges)  Condo association said they can build a communal Succah in parking lot, which is reasonable and would respect section 3 of the Charter  By signing the co-ownership agreement the Appellants gave up their rights to build Succahs on their balconies

 A binding agreement between two or more parties (individuals and or corporations) to perform an undertaking o Good faith CCQ 1375:  Parties are required to perform their contractual obligations in good faith  People do not always respect their contractual undertakings  Breech of contract CCQ 1458 o Onerous vs. gratuitous CCQ 1381:  Onerous: both parties have an obligation  Gratuitous: only one party has an obligation (giving a gift) o Instantaneous vs, successive performance CCQ 1383:  Instantaneous: the obligations of both parties can be carried out immediately (contract of sale)  Successive performance: the obligations of both parties are carried out over time (lease – even if you pay 12 months’ rent up front you still have ongoing to take care of apartment/car until the end of the lease o Oral vs. written contracts  Oral contracts are enforceable but more difficult to prove  Oral evidence not always sufficient  Certain contracts must be in writing (public order – residential lease, real estate deeds, mortgages) Formation of Contracts - Essential Elements CCQ 1388 o Essential elements: to have a valid contract the parties must agree on the essential elements of the contract  Example: lease has three essential elements: item (car/apartment), term (duration), price (rental)  Therefore, for an offer to be valid, the Offeror (the person making the offer) must state all of the essential elements in the offer. The person to whom the offer is made is known as the Offeree - Offer o Determinate or indeterminate (CCQ 1390)  Determinate: offer directed to a specific person  Indeterminate: an offer to the public at large  Exception: Invitation to treat (i.e., Kijiji advertisement for sale) o An advertisement placed by a cat owner on Kijiji or in a local newspaper stating that he/she has a cat for sale, is not considered an offer to sell, but rather it is considered a notice that the cat owner is interested in receiving offers from 3 rd parties to buy his/her cat o Professional sellers however, under the Consumer Protection Act, must indicate “while supplies last” and also must have a reasonable quantity of merchandise on hand when they advertise a sale

o Term CCQ 1390: The period of time during which the offer is available for acceptance  If no term is stipulated, you can withdraw your offer at any time prior to acceptance o Lapses CCQ 1392: When the term expires, the offer lapses  If no term is stipulated, after a reasonable amount of time the offer will lapse  If an offer is refused, it will lapse - Acceptance o Acceptance can be express or tacit (CCQ 1386)  Express: a clear verbal response of yes, or by signing a written contract  Tacit: a demonstration of your acceptance through your actions when you do not say anything and do not sign anything  Example: holding your hand out to receive and item or payment o Where acceptance occurs CCQ 1387:  If the Offeror is in one city (Montreal) and the Offeree is in another city (Toronto), the contract is formed when and where the Offeror receives notice of acceptance (Montreal) o Counter offer CCQ 1393: Refusing initial offer by making a new offer  Original offer is no longer open for acceptance once a counteroffer has been made o Silence CCQ 1394: Deemed to mean NO  Silence on its own with no positive action does not equal tacit acceptance of an offer Validity of a Contract - Four elements CCQ 1385 o Capacity CCQ 1398: Allowed by law to enter into a contract on your own behalf, unassisted  Age of majority (18+ years), if under 18 years old you need a parent/guardian to co-sign with the minor  Over 18 years but are a protected person full of age (the person is subject to a court judgment requiring a tutor or a curator to assist him/her in certain transactions), cannot contract alone o Cause CCQ 1411: A contract must have a valid cause – the underlying reason for entering into the contract cannot be illegal or against public order o Object CCQ 1413: A contract requires a valid object – the goods/services cannot be illegal or against public order o Consent CCQ 1399: Consent must be free and enlightened (you must understand the material facts regarding the contract and you must voluntarily want to enter into the contract), your consent may be vitiated (rendered null) by error, fear, or lesion - Error CCQ 1400 o Error: There are two types of error, excusable and inexcusable  Excusable error: (Honest) both parties in good faith, a mistake