Legal Risk Management

Shipping dynamite on the 401

• Risk avoidance
Not do it at all
• Risk reduction
- only do in daylight, with policy escort
• Risk shifting
- get insurance- shit risk
• Risk acceptance
- self insurance
Workers

1. They don’t live below the poverty line

2. Lower wealth and income gap –
3. Giving money to the lower wage workers, they spend it,
1. Rich people don’t spend it
4. Increasing their minimum wage will save money on social spending side – hospitals/
police.

Flip side:
• Govt, get your hands out of my pocket. My money don’t tell me how to spend.
• not all of them are full time workers at minimum wage
• Makes them less competetive and greater inefficieny- they can’t compete
 Definition: “The Law”

A set of rules established and enforced by the government.

• Needs to be enforced to show that it is more than a suggestion

• Legal system problems in Canada:

• Access
• Language
• Education
 Law: Civil vs. Common

Civil law Code is based on a comprehensive civil code – cases are

judged based on merit
(e.g. Quebec, parts of Europe)

Common law is based on previously decided cases- precedent

(e.g. Canada, U.K., U.S., Australia)
Civil law in Canada is based on private issues, any issue that is not
based on criminal law
Civil law is governed by Common law = by precedent in all provinces,
except Quebec.
Purpose of criminal law is punishment and deterrence
• must prove case beyond reasonable doubt because the stakes are much higher, you should prove that
there is no doubt that the person has committed the crime.
• People get off on technicalities, but we judge to err on the side of the innocent, to let 10 guilty people go
free in comparison to imprisoning 1 innocent person.
• Defendant always gets the benefit of doubt
• Tough on crime initiative does not work

Civil law is base on compensation – distributive justice – distributing

resources between people
• must prove with balance of probabilities – tip the scale in your behalf
 Sources of the Law

• Constitution
• Constitution always prevails above any law – govt can’t make any law that
conflicts with the constitution as it won’t be taken into account – won’t prevail
against the constitution.
• This makes sure that govt is not the law, as they are subject to the rule of law
• Statutes/Legislation
• Common Law/Case Law
• Unwritten – based on precedent
• This goes to show that not all law that is enforceable has to be written down
 Constitutional Law

• s. 91 – Federal Jurisdiction
• Interprovincial trade
• Criminal trials

• s. 92 – Provincial Jurisdiction
• Both lists – agriculture
• If you can obey both, you must
• If you can only comply with one, always comply with federal
• Not on either list, always goes to the feds
• Customs and Conventions
• International Treaties
• part of our constitution

• Charter of Rights and Freedoms

• 1982 - constitutional amendments
• Defines us by the values we share,
• We champion fundamental rights and freedoms
• Specifically enforced on the govt to make sure that they don’t make any policy that will revoke the freedoms of
their citizens, thereby conflicting the charter.
 Charter of Rights and Freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression;
(c) freedom of peaceful assembly; and
(d) freedom of association.
 Charter of Rights and Freedoms

Other rights and freedoms include:

• democratic rights
• language rights
• mobility rights
• legal rights
• equality rights

Section 1 – charter
Rights cannot be absolute because the exercise of rights conflicts with others rights
Which right prevails?
• We must protect rights of individuals, but we must also consider the needs of society
• There needs to be a balance between these issues.

After 9/11 – national security certificates- invasion of privacy etc, infringes right of individual
• How can you tell the difference between abuse of power and national security

The charter only limits the power of govt- police etc.

 Charter of Rights and Freedoms

Limitations on the Charter rights and freedoms:

• only applies to government (s. 32)
• To protect against oppressive policies

• the “notwithstanding clause” (s. 33)

• Can be enacted by the govt on certain freedoms – freedom of expression

• reasonable limits (s. 1)

• Infringe rights based on a reasonable limits - must justify why it is infringing
 Legislation

• Federal or Provincial
(not municipal)
• Takes precedence over case law
• Provided that they act constitutionally
• Subordinate to the Constitution
 Common Law / Case Law

Supreme Court of
Canada

OCA MCA ... BCCA FCA

TC TC TC … TC TC TC … TC TC TC … FTC FTC FTC …

exception at FTC is criminal cases, which are fought in provinces.

You can only appeal on matters of law, not findings of fact –

You can’t appeal on what the judge found the facts of the case to be ( what actually happened vs what happened), you can
only appeal on the matters of law – error in how the law was applied! – Not oh he didn’t understand it properly so I’m
appealing!
 Civil Litigation

1. Pleadings
2. Discovery
3. Trial
4. Decision/Judgment
5. Enforcement
 Alternative Dispute Resolution

• Negotiation
• Mediation
• Arbitration