ENCS 352 Midterm 1

  1. what is the lawjQuery110105298976961707857_1506308924162
    • set of rules that apply to everyone equally and reflect societal norms
    • recognize and protect basic individual rights and freedoms
    • carry out social policies -> allow systems to be put into place for the gov't to provide (ex. insurance for unemployed, benefits for injured workers, health care)
  2. what is public law?
    • sets the rules for the relationship between the individual and society 
    • ex. criminal law, constitutional law, administrative law
  3. what does criminal law deal with?
    crime and punishment
  4. what does constitutional law deal with?
    • defines relationships between governments and various branches of government
    • limits the exercise of government power over individuals (ex. human rights and freedoms)
  5. what does administrative law deal with?
    deals with actions ad operations of government
  6. what is private law?
    • sets the rules between individuals
    • settles disputes between groups and compensates victims
  7. torts
    civil wrongs dealt with in private law
  8. common law
    • exists in past decisions, guides judges in later decision making in similar cases
    • law that isn't written down as legislation
    • flexible, adapts to changing circumstances
  9. civil law
    • civil law is based on a code that has a comprehensive statement of rules 
    • broad general principles that can deal with any dispute that arises 
    • courts in civil-law systems look at civil code first, then refer to previous decisions to check consistency
    • ex. Quebec
  10. regulations
    • carry out purposes of general law or expand on them
    • have force of law
    • departments or other organizations can be granted authority to make regulations
  11. law reform
    laws must be consistently reformed to makes sure the system of law and order meet challenges of contemporary society
  12. which acts does the Canadian Constitution include?
    Constitution Act (1867) and Constitution Act (1982)
  13. three branches of government in Canada
    • executive
    • legislative
    • judiciary
  14. executive government branch
    • Queen has executive power in Canada, but within Canada they're exercised by ministers in the house of commons
    • ministers and PM form the cabinet
    • responsible to parliament for government business and civil service
  15. legislative government branch
    • parliament
    • passes laws
  16. judiciary government branch
    • composed of judges 
    • judges are appointed
    • judges must interpret and apply the law and Constitution
    • the court system
  17. parliament can make laws for __________
    • all of canada
    • only about matters of the Constitution
  18. provincial/territorial government can make laws for ____________
    only matters concerning provinces and territories and that only apply within the provincial/territorial boundaries
  19. bijural country
    • a country that has two law systems working at the same time
    • ex. Canada, has common and civil law systems
  20. environmental law
    special body of rules which seeks to protect? manage? improve? the environment and humans' relationship with the environment
  21. rule of law (and 5 requirements)
    • checks and balances on unrestricted government power
    • a) everyone is bound by the law
    • b) no one is above the law
    • c) public powers must be authorized by law
    • d) laws must be intelligible, published, accessible
    • e) laws are enforced by an independent judiciary
  22. burden of proof for criminal justice system
    • "beyond a reasonable doubt"
    • 90% sure or more
    • to protect the accused from being wrongly accursed
  23. burden of proof for civil court/private law?
    • "balance of probabilities"
    • 50% sure or more
  24. the 3 P's you need to bring forward a lawsuit
    • Property interest
    • Personal (health) interest 
    • or
    • Pecuniary (financial) interest
  25. three questions that public interest standing needs to be answered?
    • is a serious issue being raised?
    • does the applicant have a 'genuine interest' in the litigation?
    • is the applicant in a better position to bring the action than anyone else?
  26. elements of tresspass
    • deliberate interference with property
    • no consent/permission/lawful right to be there
    • ex. discharge of sawmill dust, ash, smoke, etc + deposit of stores or fill + aerial application of pesticides
  27. elements of nuisance
    • is the plaintiff the landowner/occupant?
    • did the defendant unreasonably interfere with the plaintiff's use and enjoyment of their property?
    • are there damages?
    • ex. odour, noise, dust, litter from a waste disposal site + escape of methane gas from a waste disposal site
  28. public nuisance
    • infringement of rights enjoyed by the public in general
    • must be so widespread that no single person could reasonably be suspected to take the action/prevent it
    • the AG or MoJ can prevent the litigation from going forward -> if its a political decision
  29. elements of negligence
    • duty of care
    • standard of care
    • causation
    • damage
    • ex. failed to see through a safety check that lead to an accident
  30. elements of strict liability
    • did the defendant make a non-natural use of the land?
    • did a substance or item escape?
    • were there damages?
    • ex. escape of fire onto adjoining lands, escape of sewage
  31. provincial administrative tribunals
    ex. AER, environmental appeals alberta
  32. Court of Queen's Bench of Alberta
    • general court of AB
    • lawyers with at least 10 years at the bar
    • civil division, family law, criminal division (general divisions)
  33. Alberta Court of Appeal
    person who was unhappy with the provincial court for criminal matters or any case in the Court of Queen's Bench
  34. Supreme Court of Canada
    • usually own't take your case unless:
    • novel area of law
    • areas that go into constitutional law
  35. federal courts
    • deal with issues of federal jurisdiction
    • ex. refugee and immigrant protection act
    • indigenous issues arising under the Indian Act
  36. example of a federal administrative tribunal
    national energy board
  37. class actions
    • large number of plaintiffs impacted by the same event or set of facts
    • a representative plaintiff (one) brings one action on behalf of all affected parties
    • result of the court decision binds all involved
    • ex. volkswagen "clean" diesel emissions
  38. interventions
    • once a legal action is underway, other interested parties may want to become involved
    • often provide submissions
  39. causation
    • causation is established when the harm suffered to the plaintiff would not have occurred 'but for' the defendant's action
    • causation is established on a balance of probabilities (burden of proofs)
    • causation is often the most difficult to prove
  40. liability vs remedy
    • liability: proof of the elements of the cause of action
    • remedy: relates to compensation
  41. cases can often be divided into _____ and ______
    liability and remedy
  42. types of damages that can be claimed
    • special damages
    • general damages
    • punitive damages
  43. special damages
    compensate plaintiff for quantifiable monetary losses (ex. dollar value)
  44. general damages
    money to compensate, but no quantifiable dollar value
  45. punitive damages
    • used to punish the defendants
    • used VERY rarely in Canada
  46. injunction
    requires defendant to do something (mandatory injunction) or refrain from doing something (prohibitory injunction)
  47. declaration
    simply a finding of the court and may not provide relief to the plaintiff but may assist in further private or public action
  48. why are lawsuits expensive and risky in Canada?
    • to protect defendants from frivolous lawsuits
    • encourages alternative dispute resolution processes (ex. arbitration or mediation)
  49. SCC
    supreme court of canada
  50. CEPA
    canadian environmental protection act
  51. MGA
    municipal government act
  52. the Constitution
    • the supreme law of canada
    • therefore any law that is inconsistent with the constitution can be struck down by the courts
  53. differences between the Constitution Act (1867) and the Constitution Act (1982)
    • Constitution Act (1867): divides powers between the federal and provincial government s
    • Constitution Act (1982): Canadian Charter of Rights and Freedoms
  54. ultra vires
    "beyond one's legal power or authority"
  55. municipalities are created by _______
    provinces
  56. Municipal Government Act
    sets out things that municipalities can enact, ex. enacting bylaws, land use planning and development
  57. bylaws
    • have to be authorized/fit within the MGA
    • can be challenged as being ultra varies the municipal authority
  58. Aboriginal title
    • land rights held by aboriginal ppls based on historical occupation of Canada prior to European contact
    • not legally until 1970s (1973 Calder v. BC)
  59. cultural rights
    • the right for aboriginal people to practice their traditional ways of life 
    • constitutionally protected
  60. Van der Peet test
    • a test used to determine if a practice is part of a "traditional" way of life
    • has to have been practiced "pre-european contact"
  61. terra nullius
    • latin for "land belonging to no one"
    • why there are a lack of treaty rights in BC
  62. characteristics of statutes
    • typically more general in nature
    • outlines powers of govt to create regulations of various kinds
    • enable specific gov't powers to regulate an activity
    • override regulations
  63. characteristics of regulations
    • more detailed than statutes
    • created by either Minister named by statute or the cabinet
    • act passed by the feds can only have regulation passed by the feds
    • "subordinate" legislations
    • legally binding
  64. characteristics of both statutes and regulations?
    can provide detailed standards, rules, and requirements that are legally binding
  65. is a judicial review an appeal? if no, what is it?
    • No
    • judicial review is the process of reviewing a board, a Minister, a Director, or other gov't decision
    • makes sure that administrative decisions are made in a legal fashion
  66. types of decisions that are "reviewable" (judicial review)
    • defects in jurisdiction
    • abuse of discretion 
    • natural justice and duty to be fair
    • errors of law
  67. defects in jurisdiction
    • a type of decision subject to judicial review
    • if a decision-maker makes a decision beyond the scope of the enabling legislation = its reviewable
    • also if legislative authority is improperly delegated to other authorities (ultra vires)
  68. abuse of discretion
    • a type of decision subject to judicial review
    • occurs when the decision-maker acts in bad faith, relies in irrelevant considerations, acts/makes decision for ulterior purpose
  69. who can seek a judicial review of a decision?
    • applications will only be heard if:
    • there is a serious issue as to the validity of the administrative decision
    • party is directly affected or has genuine interest
    • there is no other reasonable or effective manner in which the issue may be brought to court
  70. remedies of a judicial review
    • nullifying an administrative decision
    • ordering a certain administrative action to be taken
    • prohibiting certain administrative activities
  71. Judicial review is the means by which ______ supervise _______
    the courts supervise those who exercise statutory powers
  72. legislative branch
    • elected and appointed representatives
    • federal
    • provincial
  73. federal legislative branch members
    parliament = members of parliament (MPs, elected) + Senate (appointed) + Governor General
  74. provincial legislative branch members
    legislature = members of legislative assembly (MLAs) + Lt. Governor
  75. job of the provincial legislature?
    pass acts, statutes
  76. bills create a _______
    framework for building a later regulatory structure
  77. executive branch
    administrative arm of government
  78. who does the executive branch include?
    • cabinet ministers (heads of govt departments)
    • tribunals/boards (created by gov't, ex. NEB)
    • gov't employees (civil service/bureaucrats)
  79. what does the civil service do?
    • operate, implement, and enforce the laws
    • provide non-partisan policy advice
  80. what does the cabinet do?
    passes regulations
  81. what do the tribunals/boards do?
    make administrative decisions
  82. policies
    • not legally binding unless adopted within statute!
    • created by executive branch to state how it will act in applying or interpreting its laws and regulations and its objectives and standards
    • broad level, set direction for where government is headed
  83. administrative tribunals can be ______ or ______
    • quasi-judicial: decide issues between parties (ex. EAB)
    • Administrative: issue licences (ex. AER)
Author
hcunning
ID
334536
Card Set
ENCS 352 Midterm 1
Description
up to midterm 1 (public law)
Updated