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Apr 3, 2024

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CONSTITUTION ACT & CHARTER RIGHT (Section 15) .............................................................................................. 3 Canada’s Court System & Interpretation ..................................................................................................................... 4 CONTRACT ............................................................................................................................................................................... 5 FORUM SELECTION CLAUSE ............................................................................................................................................... 6 CAPACITY ................................................................................................................................................................................. 7 RESTRAINT ON TRADE ........................................................................................................................................................ 8 MISREPRESENTATION ......................................................................................................................................................... 9 Undue Influence, Duress, and Unconscionability .................................................................................................... 10 1 1

FEDERALISM ULTRA VIRES (Federal 91 vs Provincial 92) Law: Section 91 and 92 of the Canadian Constitution Act lays out federal and provincial powers. If a provincial or federal government tries to regulate an area of law not under their jurisdiction, they can be sued and the courts will apply the Ultra Vires 2- Part Test. No relevant cases required here Ultra Vires 2-part test : establishes if a law passed by government is outside of their jurisdiction  Pith and Substance: What’s the purpose of the law and primary topic of law?  Heading of Power: What jurisdiction does this fall under? Additional Areas:  Double Aspect: When an area of law can be regulated by both federal and provincial harmoniously  Federal Paramountcy: When conflict over jurisdiction, federal government prevails Example: BC Gov passed law so that students who are stoned on campus are charged with criminal offence Law: If a provincial or federal government tries to regulate an area of law not under their jurisdiction, they can be sued and the courts will apply the Ultra Vires 2- Part Test Application: 1. The first part of the Ultra Vires test is the "pith and substance" test, which determines the true nature of the law in question. Although the new law concerns education, the main effect of the law is to create a criminal offence related to students, which is a power exclusively reserved for the federal government under criminal justice. 2. The second part of the test is the "jurisdiction" test, which determines whether the government has the authority to pass the law in question. In this case, criminal justice is under federal jurisdiction, which means that the provincial government lacks the power to create criminal offences related to marijuana on university or college property. Conclusion: courts strike law down under section 91 92 violation. Double aspect would not apply in this situation, which is when a new area of law can be regulated by both federal and provincial government without issue. Might be able to argue that this law is a Charter violation but the answer would not be as strong. 2 2

CONSTITUTION ACT & CHARTER RIGHT (Section 15) Law:  The Charter of Rights and Freedoms applies only to government/public action or decision making. After determining if the Charter applies, the presence of discrimination must be established.  Does the law draw a distinction based on personal characteristics or fail to consider the claimant's already disadvantaged position resulting in differential treatment? Does the differential treatment discriminate under Section 15? Section 15 covers race, religion, national/ethnic origin, color, sex, age, physical/mental disability,  Is the claimant's dignity demeaned? (This is subjective, as evidenced by the Liebmann case where Libemann's emotional state was sufficient to fulfill this aspect of the law).  If all the above are proven, the burden shifts to the government to demonstrate that their actions are valid under Section 1, "subject to such reasonable limits as can be demonstrably justified in a free and democratic society" (Liebmann). This means that although the government engaged in discriminatory practices, they can justify their actions as being for the greater good of society. Government may also rely on S.33 Section 33 ("notwithstanding clause." This clause allows federal and provincial governments to pass legislation that may be inconsistent with certain sections of the Charter) Case: Liebmann Facts: Liebmann was a lieutenant in Naval Reserve, wanted to go to Kuwait for a mission. People hiring him rejected him as a candidate once they discovered he was Jewish and could affect the mission. Issues: Were Liebmanns rights to equality of the Charter limited. Conclusion: Liebmann is entitled to a declaration that the refusal to select him for duty with CFME because of his religion was unconstitutional, being contrary to his rights to equality under the Canadian Charter of Rights and Freedoms section 15 against his religion. The respondents must pay Liebman’s costs both at trial and on appeal. Liebmann Test (Only applies to government (or public) action  Does the law distinguish based on personal characteristics or fail to consider the claimant’s already disadvantaged position resulting in differential treatment?  Does the differential treatment discriminate under Section 15? (Section 15 covers race, religion, national/ethnic origin, colour, sex, age, physical/mental disability etc…)  Is the claimant’s dignity demeaned? Government:  If all those above are proven, the burden shifts to the government to show valid according to Section 1, “subject to such reasonable limits as can be demonstrably justified in a free and democratic society.”  Does s. 33 apply? Example: Art gallery didn’t let in black guy because he looked homeless, even though he wasn’t APPLICATION: The Charter does not apply in the US. However, if similar events were to occur in the US, similar laws would apply. If similar events were to occur in Canada, the Charter would apply even if it seems like a non-governmental issue. This is because this gallery is a public area that should allow the entrance and exit of any individual regardless of race, ethnicity, gender, etc. If the private establishment is "customarily open to the public," such as a cinema or grocery store or in this case a free to access gallery, the Charter would apply. In this case, Jamal hails, meaning that the policy violates Section 15 (equality rights) of the Charter. We can argue that Jamal’s dignity is demeaned due to his race, and as a result, he is upset that he tour the gallery due to his skin color. The burden then shifts to the M&M to demonstrate that the policy is in place for a valid reason. He will likely fail to do so as preventing Jamal from entering the gallery would not be for the greater good of society, nor is such a policy reasonable. CONCLUSION: Jamal challenge will succeed, and M would likely have to compensate Jamal. The government will also likely compensate Jamal for damages and costs. 3 3

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Canada’s Court System & Interpretation Civil Law = Every law is written in a code Common Law = Includes precedent (judge-made law) Stare decisis = to stand by things undecided Equity: Equitable remedies remain: injuction, recission, specific performance Must have “clean hands” $35,000 for small claims court otherwise BC Supreme Court Interpretation: Law: - If the court rejects a literal and liberal interpretation of an ambiguous contract, the courts will employ the rule of contra proferentem as a last resort. - The effect of this rule is that the case is decided against the party who had the best opportunity of selecting the language of the contract. (BKDK) 4 4

CONTRACT Law: Do they have a contract? A contract is formed when there is existence of the 6 elements: intent, offer, acceptance, consideration, capacity and legality Law and application: 1. Intent is presumed to exist in a business transaction If no 2. presumed intent, explain why and reference (Carlill v Carbolic Smoke Ball Company) 3. An offer is a proposal where there is clarity on these three terms: parties (who’s involved), price, and subject matter. In this case, the parties are _____, the price is ____, and the subject matter is the _____ a. A counter offer is any change to the terms of the existing offer. The effect of the counter offer is that it causes the original offer to lapse (Montane). A counter offer in this case is when ________ b. advertisements are mere invitations to do business and not an offer that could have been accepted. An response to an advertisement is the first offer. → is there any evidence that this offer is accepted? Test if something is an OFFER : (1) the wording objectively shows sufficient intention to create legally binding obligations and (2) with respect to unilateral contracts (the advertisement calls for an act from the buyer 4. Acceptance must be of all of the terms of the offer. a. The postal acceptance rule says that if the offer comes by mail without directions regarding acceptance or the offeror stipulates acceptance by mail then the acceptance is complete with the letter is posted. In this case _____ b. Revocation is permitted before acceptance. In the postal acceptance rule’s case, revocation takes place when the revocation is DELIVERED. c. According to the postal acceptance rule, when it is reasonable to accept by post (the offer comes by mail without directions as to acceptance or acceptance by mail is stipulated) acceptance is effective when sent Here it was reasonable to accept by post because the offer had been by post. Acceptance would be effective in (place) , where the acceptance was mailed. This contract was therefore made in (place) and (place) law would likely apply. (Rudder) 5. Consideration is the mutual exchange of promises (bilateral) or a promise in exchange for an act or service (unilateral) (Caliguiri). Mutual promises can be consideration; nothing needs to change hands immediately. Funds rejected do not destroy consideration, parties are still bound. In this case, consideration from party A is ____ and consideration from (party B) is ______ a. The contract without consideration from one party is a gratuitous promise and is therefore not binding. What this means is that (the party with consideration) can revoke that offer at any time prior to that date and before acceptance. b. Caliguiri: $50K Loan from Mom to Son and required promissory notes but didn’t get it (bankrupt) c. Courts do not assess the adeuqcy of consideration (peppercorn) d. Past consideration is no consideration (something promised AFTER something is received) e. Consideration Equitable/Promissory Estoppel (5 Part Test) – If contract is relaxed i. Legal relationship between the parties (parties have a contract) ii. A promise to RELAX strict legal obligations is made iii. The promise is relied on by the other party to their detriment iv. The party who relaxed the obligation cannot later reassert their original rights v. Can only be used as a SHIELD, not a sword 6. Capacity and Legality do not appear to be in issue here (SEE INEBRIATION & MINOR) Conclusion: (party A) and (party B) have a contract as of (date) . 5 5

FORUM SELECTION CLAUSE Law: Term in a contract which states where any disputes will be heard (in what place/jurisdiction). If forum selection clause specifies a location, it is presumptively enforceable but will need to run the Douez test to see if it can be rebutted. In the absence of a forum selection clause, the law that applies to a contract is the law of the jurisdiction that has the closest connection to the contract. Usually where the contract is made will be the determining factor. (Douez v Microsoft) – USE DOUEZ (POMPEY) CASE (Add to this) Pompey Test 1. Where is the evidence? Is it convenient or expensive for a party to get to the jurisdiction? Consider the location of the relevant evidence for the lawsuits. Are the majority of the documents, witnesses, and other evidence located in Vancouver or in New York? Consider the cost and time required for the parties and their witnesses to travel to Vancouver for the court proceedings. 2. Does the law of the foreign country apply? Are there any special laws in either jurisdiction that apply? 3. Strength of jurisdictional connection to parties Consider where parties are based 4. Is enforcement genuine or is it just for procedural advantage? Is a court being selected for a procedural advantage like time? For ex, the other party cannot bring the claim in fast enough 5. Will plaintiff suffer prejudice by bringing claim in foreign court? Does the court always rule in favor of the home party? Case: DOUEZ v. FACEBOOK INC. CB 27 • Douez sued Facebook for using her name and profile pic for advertising under Facebook “Stories” without her consent • Forum selection clause in terms and conditions specified California as exclusive forum for disputes Example Answer: New York developer unhappy with Vancouver construction company 6 6

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CAPACITY Law: Contracts made with individuals who are lacking in capacity temporarily due to inebriation may be unenforceable against that individual unless it is a “necessity”. For non-necessities, the contract is not enforceable against the inebriated party, on the condition that such party is able to show: Test  They were incapable of rational decision making at the time the contract was made;  The other party (seller) was aware of this condition;  Buyer must act promptly on emerging from state of incapacity/inebriation (and cannot have accepted the benefits of the contract. * External evidence: usually required to prove inebriation and incapacity * Minors: Contracts entered into by minors with adults are enforceable against the adult, but not against the minor (The Age of Majority act sets 19 as the age of adulthood in BC). Assume BC if not stated. Example: Bought pair of Jordan’s for 20K when guy was very drunk Law: Contracts made with individuals who lack capacity due to temporary inebriation may be unenforceable against that individual, except in cases where the contract involves a "necessity," such as food, shelter, transport, and basic clothing. In such cases, the contract would be enforceable against the inebriated party, but only at a reasonable price. For non- necessities like clothing and sneakers, the contract is not enforceable against the inebriated party, provided they can demonstrate that they were incapable of making rational decisions at the time of the contract, the other party was aware of this condition, and the inebriated party acted promptly on emerging from the state of incapacity to repudiate the contract and did not accept the benefits of the contract. Apply: In the case of Clint, the Jordan 4 sneakers are not considered necessities and are priced at a premium. Therefore, Clint can seek a refund from Nalom. Clint can use the cameras and video footage as evidence to prove that he was incapable of acting rationally. Additionally, testimonies from Clint's friends who were with him during the night and his basketball buddies could be used as evidence. Nalom was aware of Clint's condition and took advantage of his vulnerability to sell him an expensive item he didn't need. However, Clint must act promptly to repudiate the contract, such as calling or meeting up with Nalom the next morning. CONCLUSION: Clint has a good chance of obtaining a refund from Nalom for the Eminem Jordan 4 sneakers. However, he must act promptly to repudiate the contract and avoid accepting the benefits of the contract, or he may not be eligible for a refund. 7 7

RESTRAINT ON TRADE Law: The general rule is that all contracts in restraint of trade are "prima facie" void and illegal. The exception is if a court finds that the party seeking to uphold the contract can prove that it is "reasonable". To prove that a contract in restraint of trade is "reasonable" they must determine the following. Since the contract is prima facie void and illegal, it is up to the party enforcing the restrictive covenant to prove every element from the following test (Phoenix v Brownlee). 1. Is the restrictive covenant reasonable with respect to the Public Interest? a. Is the restrictive covenant a restraint on competition looking at the nature and location of the business? b. Would the enforcement of the restrictive covenant deprive the public of some special service? 2. Is there a legitimate proprietary interest entitled to be protected? 3. Is the restraint reasonable given: a. size of the restricted geographical area? b. Nature of activities prohibited c. Length of restriction? d. Overall fairness 4. Are the terms certain? (i.e. clear and not vague). Application: - The clause is prima facie unenforceable and (the enforcing party) will have to show that it is reasonable. Where a court will likely find: - Public Service: It is not clear that the covenant would be depriving the public of a special service. There are many alternative fitness options, including many boot camp styled offerings. This restriction would not unduly deprive the public of the choice of army styled workouts. - Legitimate Interest: Yes, the interest to protect the current business and its unique positioning as an army style workout, with its current base of clientele would be a business interest that would be threatened by a competitor opening up a gym in competition. However, the “reasonableness” of the restraints (discussed next) on competition are likely to be found at issue. - Reasonable: Geographic Area – the country of Canada is far too broad. The legitimate interests of the business would likely be restricted to a geographic area representative of such things such as average distance to clientele - Nature of Activities – these are also likely far too broad. Barring offerings that include “running” and “push-ups” would disqualify an unreasonably broad range of activities such as running groups and all kinds of exercise offerings that have nothing to do with armystyled workouts - Length of Restriction – Ten years is far too long. Doug does not necessarily have unique skills that require special protections. This is also not a special situation, such as the sale of a business, where a longer term may be acceptable. - Overall Fairness – this is unfair. Barring Doug from gainful employment in a very broadly defined field for a period of 10 years in all of Canada will essentially deprive him of all job prospects possible. Additionally, there is no descending scale of damages which is helpful to prove fairness. Conclusion: The terms are certain, however, given the above, a court will likely strike down the covenant. Courts will not “rewrite” a covenant to make it enforceable where it would be rewriting the intentions of the parties and it would likely not be saved by the court 8 8

MISREPRESENTATION Law: Misrepresentations are made pre-contractually and can be made either: - innocently (where the maker of the statement honestly believes it to be true, but it is false), - negligently (where the maker of the statement owes a duty of care to the buyer to ensure that the statement is not carelessly made) or - fraudulently (where the maker of the statement deliberately tries to mislead the buyer). To prove misrepresentation, the plaintiff will have to show that there: (i) was a material fact; which (ii) induced him to enter into the employment agreement (Collins or Weinman). - The remedy for innocent misrepresentation is rescission only. The remedy for negligent and fraudulent misrepresentation is either rescission or damages Negligence framework: A plaintiff suing under tort law for negligence must show that: 1. the defendant owed a duty of care 2. That the breach was within a reasonable standard ¾. The breach caused harm and damages that were reasonably foreseeable - Without damages, negligent behaviour is not actionable Person 1 - As a (person) who (role) ________________ owes a duty of care to people on their property - It is reasonably foreseeable that having an aggressive dog would affect other people on the street. However, even though (person) put up signs to draw attention to the electric fence and dog, (person) could have done more since not all people would see her warnings. - The breach of standard caused the damages, and the damages are reasonably foreseeable - Person 1 is (liable) to plaintiff Example: Sophia gets nails done but does not want acrylics. She asked and was told they didn’t use it. Law: What constitutes negligent, innocent and fraudulent misrepresentation? Application: The issue in this scenario is whether Sophia can take legal action against Luxe Nails for misrepresentation. Misrepresentation occurs when one party makes a false statement that induces the other party into the contract. Negligent misrepresentation is a form of misrepresentation where the representor made a representation that they should have known was false. In this case, Sophia told the receptionist she's allergic to acryllic, and was falsely told that the salon does not use acrylics for this service. Even if the receptionist did not intentionally lie, she SHOULD have known that acrylics would be used because making the wrong statement can cause harm to Sophia. On top of this, the manager's unwillingness to offer a refund makes the case for negligent misrepresentation stronger than innocent misrepresentation as the nail salon is considered as a professional service that requires a duty of care. Conclusion: Therefore, Sophia may have a strong case for seeking both rescission and damages under negligent misrep, as she was induced into booking the appointment based on false information given by the receptionist. 9 9

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Undue Influence, Duress, and Unconscionability Law: an unconscionable contract is one where there is unequal bargaining power between parties and the more powerful party gets an extremely advantageous deal. In consumer contracts, the use of independent legal advice (ILA) can rebut claims of unconscionability. Unconscionability (Unconscionable Contracts)  When there is power imbalance  Unconscionable contracts include situations of Duress or Undue Influence Duress (Threat)  Associated with violence  Not necessarily physical violence (open threat against your person or property or interests) Undue Influence (Making Wife sign something she doesn’t know anything about)  Marriage, elders, under-educated population, disabilities…  Taking advantage of someone else’s vulnerability Example: Maggie sells her house to her real estate agent for way less because of his advice. Law: To determine whether a contract is unconscionable, a court will consider whether the bargaining positions of the parties were unequal, whether one party dominated and took advantage of the other, and whether the consideration involved was grossly unfair. Apply: The concept of unconscionability is relevant to Maggie's situation. In Maggie's case, Jack, as a real estate agent, had more knowledge and expertise than Maggie, who may have lacked knowledge of the value of her property. If Jack used his position of influence of being the top realtor in the city to exert undue influence over Maggie and convince her to enter a contract that was not in her best interest, then the contract could be considered unconscionable. Conclusion: If Maggie can demonstrate that Jack took advantage of her unequal bargaining position and that the consideration involved was grossly unfair, she will be able to successfully rescind the contract. 10 10

393ANSFINAL

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