CY - Exam Review
Part A: Knowledge
Crimes v. Torts (Fill in the Blanks)
| If one person | it is the crime of | and also the tort of |
|---|---|---|
| hits another | assault | battery |
| holds another against his or her will | forcible confinement | false imprisonment |
| breaks into another’s house (with the intent to steal) | break and enter | trespass to land |
| takes another’s belongings | theft | conversion or trespass to goods |
| kills another | homicide | wrongful death |
Essential Elements of a Marriage (Short Ans.)
mindmap [Essential Requirements for Marriage] (Mental capacity) (Valid consent) (Min. age or parental consent) (Absence of prohibited relationship) (Termination of prior marriages) (Sexual capacity)
More detail: c16-marriage
Essential Elements of a Contract (Short Ans.)
flowchart TD a[Offer] --> b[Acceptance] b --> c[Consideration]
- Offer
- offer must be communicated
- invitation to treat (not an offer)
- Acceptance is not valid from inaction
- unilateral contract: acceptance by performing act requested
- burden shifted to offeror (offeree sends acceptance = accepted)
- Consideration
- ✔ present consideration, future consideration
- ❌ past consideration
More detail: c18-contract-law
Invalidating a Contract (Short Ans.)
mindmap [Invalidating Contract] (Incapacity to Contract) (Illegality) (Contrary to Public Policy) (Mistake) (Misrepresentation) (Duress) (Undue Influence) (Unconscionability)
mindmap [Incapacity to Contract] (Minors) (Necessities: *enforcable*) (Voidable Contracts) (Void Contracts) (Parental Liability) (Incapacitated Persons)
flowchart LR a[Mistake] --> b[Common Mistake] a --> c[Mutual Mistake] a --> d[Unilateral Mistake] a --> e[Clerical Mistake]
flowchart TD a[Misrepresentation] --> b[Innocent] a --> c[Fraudulent]
More detail: c18-contract-law
Part B: Thinking — Case Studies
Cases Oversimplified
- Pettkus v. Becker: Rosa B. and Lothar P. → cohabitation → beekeeping business [p. 479]
- F.H. v. McDougall: Indigenous man sex. assaulted by Oblate brother McDougall [p. 446]
- WIC Radio Ltd. v. Simpson: Simpson sues WIC Radio bcz. host Rafe Mair compared her to Nazis, KKK and skinheads [p. 466]
- M. v. H.: Girls in same-sex relation; support payments denied; challenges “spouse” as “man and woman” under Charter [p. 492]
- Derrickson v. Derrickson: Rose and William → denied William’s reserve properties under B.C. Family Relations Act → superseded by Indian Act [p. 512]
Pettkus v. Becker, [1980] 2 S.C.R. 834
Background
- Rosa Becker met Lothar Pettkus in 1955 and started living together soon
- Rosa suggested marriage but Lothar said they should wait until they knew each other better
- never married
- next 5 yrs: Rosa paid the rent and looked after household expenses
- Lothar saved his money for future investment in beekeeping farm (all savings under Lothar’s name)
- 1961: couple buys farm under Lothar’s name
- couple eventually establishes beekeeping business
- ran for next 14 years
- business expansion
- 1973: net profit of $30,000
- 1970s: relationship deteriorated
- Rosa left Lothar, alleging she had been beaten and abused
- She then seeked 1/2 interest in property, worth $300,000
Legal Question: How should assets and property of a common-law partnership be divided when the relationship terminates?
Decision
- trial judge awards Rosa 40 beehives, w/o bees and $1,500 (Rosa appeals)
- appeals court judge determined Rosa and Lothar lived together as husband and wife for ~20 yrs.
- 1/2 property awarded to Rosa (Lothar appeals)
- S.C.C. upholds Ontario Court of Appeal ruling
- Rosa Becker never received share of property bcz. Lothar refused Court’s decision
Legal Significance
- established the principle where one party should not benefit unjustly from the expense of the other
- recognition of property rights during cohabitation
- confirmed that contributions beyond money count (i.e. household labour, support)
Case: F.H. v. McDougall (2008), S.C.C. 53 (CanLII)
Background
- F.H. was resident at Sechelt Indian Residential School in B.C.
- McDougall was…
- Oblate Brother
- junior and intermediate boys’ supervisor
- from 1965-1969
- Assaults alleged to have occurred when children were brought one-by-one into the washroom for cleanliness inspection
- F.H. told no one about assaults until 2000 when he told his wife
- Trial judge found F.H. to be credible witness
Legal Question: Should standard of proving liability in civil cases involving wrongdoing be as high as it is for proving criminal guilt?
Decision
- Court of Appeal overturned conviction
- Testimony from adult victims about long-time-ago events required independent corroboration
- S.C.C. Appeal Decision
- Restoration of trial Judge’s decision
- Decision based on which party presented case w/ greater likelihood of fact
- Little evidence typically in sexual assault torts
- If on balance of probabilities, assault did happen, sufficient to rule for plaintiff and make defendant pay
- Even in criminal sexual assault cases, corroborating evidence not required
Legal Significance
- Reinforces existing standard that civil suits are based on a balance of probabilities
- Judge favours more likely scenario
- Corroborating evidence not required for sexual assault cases even in criminal cases
Case: WIC Radio Ltd. v. Simpson, [2008] S.C.C. 40 (CanLII)
Background
- Rafe Mair well-known and sometimes controversial host of show on WIC Radio
- Kari Simpson widely known social activist against positive portrayals of gay lifetstyle
- controversial debate on radio: Should materials dealing with homosexuality be introduced in public schools?
- Mair FOR: he believed it would promote tolerance
- Simpson AGAINST: she argued it would promote homosexual lifestyle
- Mair compared Simpson to Hitler, Ku Klux Klan, and skinheads
Trial
- Simpson sues for defamation
- Mair at trial testified that he had not implied that Simpson condoned violence toward gay communities
- Mair simply wanted to convey that Simpson was an intolerant bigot
- Trial Judge dismissed complaint noting that defence of fair comment applied
- Court of Appeal reversed trial Judge’s decision
- no evidence that Simpson had ever promoted / condoned violence against gays
- Mair didn’t testify that he had honest belief that Simpson would condone violence
Legal Question: What is the objective test that would grant a defence of fair comment?
Decision (S.C.C.)
- S.C.C. restored trial Judge’s decision
- Mair did make defamatory comments about Simpson
- comments protected by fair comment bcz.
- a) The comments were on a matter of public interest;
- b) They were based on fact;
- c) The comments were recognized as comment; and
- d) The person who made the comment believed them to be true
- Court ruled that last test should be modified to read “if any person could honestly express that opinion based on the same facts”
Legal Significance
- Fair comment defence should not include element of honest belief
- Only requirement should be that it’s based on some facts
- Shift of focus from speaker’s mindset (hard to prove) to factual basis
- Protects freedom of expression of journalists, media, and talk hosts
Case: M. v. H., [1999] 2 S.C.R. 3
Background
- 1980: M. and H., 2 women began living together in same-sex relationship
- Started own ad business, purchased businesses, and vacation property
- 1992: relationship deteriorated and M. eventually left common home
- M. financially disadvantaged and filed for support payments under Ontario Family Law Act
- M. knew claim would not be successful because “spouse” could only be someone of the opposite sex
- M. intended to challenge def. under the Charter
Legal Question: Did the words “a man and woman” in the definition of “spouse” in the Ontario Family Law Act discriminate against cohabiting partners of the same sex?
Decision
- Judge ruled that def. of “spouse” in Family Law Act discriminatory
- Declared that “a man and woman” should be changed to “two persons”
- H. appealed and Ontario Court of Appeal upheld decision
- Decision appealed to S.C.C.
- S.C.C. found that definition of “spouse” violated the equality provisions set out in s. 15 of Charter
Section 29 of the Family Law Act established differential treatment on the basis of a personal characteristic, namely sexual orientation. This discriminates in a substantive sense by violating the human dignity of individuals in a same-sex relationship.
— Justice Peter Cory
Legal Significance
- set precedent regarding legal def. of “spouse” in Ont.
- recognition of same-sex relationships
- Court gave gov’t. of Ont. 6 months to change def.
- other prov. followed suit in amending laws to incl. same-sex relationships
Case: Derrickson v. Derrickson, [1986] 1 S.C.R. 285
Background
- Rose and William Derrickson were members of Westbank First Nation in BC
- Rose sought divorce
- She applied under BC Family Relations Act for a half-interest in properties that William had been granted under s. 20 of Indian Act
- Rose prepared to accept compensation in lieu of property
- Supreme Court of British Columbia dismissed Rose’s application
- fed. Indian Act supersedes prov. Family Relations Act
- on appeal, Court of Appeal stated that Rose was not entitled to interest of land; but she should be compensated financially
Legal Question: Do the provisions dealing with division of family assets in British Columbia Family Relations Act apply to reserve lands held by an Aboriginal person?
Decision
- S.C.C. held that right to possess reserve lands is a federal matter
- Court awarded Rose compensation for her interest
- Court could not award her equal division she would have had under prov. legislation
- Critics argue that this law puts Aboriginal women at a disadvantage bcz. majority of Certificate of Possession holders are men
Legal Significance
- affirmed federal jurisdiction over reserve lands
- limits on app. on family property rights on reserve lands
- shows that Indigenous women can only rely on compensation, not fair share to land
- highlights legal gap in protecting Indigenous women
- exposure of systematic gender equality (most Cert. of Possession holders men)
Part C: Communication
P. 425, Special Types of Liability
mindmap [Special Liabilities] (Strict Liability) (Product Liability) (Occupier's Liability) (Vicarious Liability) (Hosts) (Automobile Negligence)
Link to Donoghue v. Stevenson [1932]
Donoghue sues ginger beer manufacturer after her drink had a snail in it
P. 469, Essential Elements of a Marriage
mindmap [Essential Requirements for Marriage] (Mental capacity) (Valid consent) (Min. age or parental consent) (Absence of prohibited relationship) (Termination of prior marriages) (Sexual capacity)
Link to Al-smadi (father and next friend of Emman Al-smadi) [1994]
Emman Al-smadi (14) married Ra’A Ahmed Said (26) Islamically w/ father’s consent
Initially rejected (against public interest), but later approved (Emman mature and Ra taking PhD for EE)
P. 478, Cohabitation & Single-Parent Familial Trends
Link to Pettkus v. Becker
P. 458, Defences to Defamation
mindmap {{Defences to Defamation}} (Truth) (Fair Comment) (Qualified Priviledge) (Absolute Priviledge)
Link to WIC Radio Ltd. v. Simpson