The Canadian Court System

The Canadian Court System

The Court system constitutes the judicial wing of the government of Canada. The Canadian court system is distinctive with varied levels of superiority and areas of jurisdiction. Some courts are operating as federal, while others are working within provinces.  Every court at the provincial level has a superior court (court of appeal). The appointment of the judges at both levels is made at the federal level. The powers and authorities vested in each court are spelled out by the Canadian Constitution. The Canadian Supreme court handles matters of national significance. At provincial levels, each court has a lower trial court that deals with family issues and minor cases. The juvenile courts do not have the authority to handle certain types of cases. In some instances, the lower courts can handle criminal and family matters.

Explain in your own words the Creation of Laws

In Canada, the law is seen as any tool of human creation that is utilized to achieve fairness and just society. There are different ways through which law is created in Canada. The first way through which law is created is through statutes.  Under this system, both federal and provincial governments can enact statutes that can be ratified to become binding. For any statute law to be approved as a law, it must resonate well with the Canadian Constitution. Statutes laws may include but not limited to liability and negligence, contracts, health, and safety rights, among others.  Another way through which law is created is through the indulgence of judges that leads to the establishment of the common law. The common law is founded on the existing maxims of the constitution and is modified or amended over time. The common law is also called the rule of precedence, which is based on the notion of consistency with the previous determination of a similar case.

Question 2

The monetary limit of claim in a simplified court procedure in the province of Ontario

In light of rule 76 that came into force following the complaints and disagreements that existed between landlords and tenants, the simplified procedure cases involving $50,000, the compromise limit should be at least 25% of actions commenced in the Superior Court of Justice.

Federal vs. Provincial Law

Conflict of laws is the existence of difference in the interpretation of a particular law between two or more organ of the judicial system. In Canada, when such conflicts arise between the federal law and the provincial law, then the federal law prevails over the provincial law since the federal law deals with matters covered in the code of procedure.  As provided by the Ontario Human Rights Commission, whenever there is a difference in understanding of a particular requirement, then the federal law shall prevail over the provincial legislation. The commission further provides that since the federal law deals with codes that are given much authority over other acts, the national court determination remains superior to provincial regulations.

Common-Law

Common law refers to a body of unwritten rules that were founded on the principle of precedence from previous cases determined by the judicial system (judges and courts). In most cases, common law is used to influence the process of making decisions on a new case whose outcome cannot be determined using the existing statutes.

Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms is documented that contains the bill of rights that is part and parcel of the Canadian constitution.  The Charter influenced the creation of new laws in the Canadian judicial system by providing for fundamental rights and freedoms of the people since it was treated as a statute and was thus enforceable as part of the Canadian law. In particular, the Charter led to the establishment of women’s rights to liberty and security. Additionally, it also led to the creation of the protection of civilians against unreasonable searches by police/law enforcement officers.

Question 3: Conflict of Interest

Conflict of interest is a situation that compromises the effectiveness of the management and administration in discharging their duties as expected by their positions. The move by the director to engage his in-laws in his investment would amount to a conflict of interest. This is because by engaging the in-laws, his authority in the company’s programs would be compromised by the influence of his in-laws. Naturally, relatives who are relatively powerful such as the in-laws may force the director to act in a manner that would suit their desires, thereby compromising the right decisions that ought to have been made. Operating a business with relatives who are revered by the directors would result in psychological manipulation since he would always want to work in a manner that befits the relatives. The director can, however, overcome the conflict by establishing organizational rules and regulations that govern the relationships between different members of the board.

Question 4: Disadvantages of Sole Proprietorship

A sole proprietorship is a very common form of business ownership. However, this form of business unit has several disadvantages that sometimes may hamper the performance and success of the business; for instance, this form of business unit exposes the proprietor into unlimited liabilities that may subsequently expose them to financial obligations and possible lawsuits. Consequently, the business would be declared bankrupt and even collapse. Besides, sole proprietorship also restricts the possible sources of capital to the business that limits its possible to expand. A sole proprietorship is susceptible to easy collapse that makes most of the potential investors to shy away from taking the risk to invest in this type of business.

The claim of Fiduciary Duty

In legal terms, fiduciary duty is an obligation that binds two parties in which each party has a duty to discharge on behalf of the other. In the context of a breach of fiduciary duty by officers and directors of corporations, all the individuals who stand to suffer damages as a result of the breach are entitled to make claims. In particular, the clients who depend on the information shared by the officers and directors of the corporations are justified to make the claims. Additionally, the shareholders who expect the directors to act with due diligence and transparency to them also have the right to make such claims in the event that these individuals that supposed to pay allegiance to them.

Question 5: Contract

A contract is a legally binding agreement between two parties in which one party makes a proposal to offer a particular product for sales while the other accepts the offer as it is. After offer and acceptance, then follows consideration. In a case where a contractor has successfully won and delivered project A, it is imperative to note that the order is independent of the second order. Subsequently, when the client brought in the idea of the second contract, which was never assigned to the contractor, the move is tantamount to counteroffer, which is not a contract per se. Consequently, the second offer does not affect the initial contract at all. He is thus justified to make claims for payments.

Question 6: Elements of an Enforceable Contract

For a contract to be deemed valid and enforceable in any court of law, there are specific elements that it must obey. First, there must be an offer that clearly specifies the desire of the offeror to engage in a contractual agreement. The offer must be followed by an acceptance, which is an equivocal expression of the desire to engage in mutually binding agreements with the offeror as per the conditions outlined in the offer. Then there is a consideration. Consideration is the exchange value for the offer. It must always be sufficient. The parties involved in the contract must also have the legal capacity to contract. In other words, the parties must have attained the age of majority. Any contract involving a minor is null and void.

Revocation of an Offer

A party can revoke an offer under any of the following circumstances: when the other party fails to fulfill his/her part of the contract. Again, a contract can be revoked when the offeror brings in a counteroffer that overrules and changes the conditions that were contained in the contract, furthermore, further, when one of the parties becomes insane, making him or she lose his/her contractual capacity.

Change Order and Change Directive

In construction, the two terms have different meanings and implications. Whereas CO refers to changes in the project that lead to alteration of the timelines of the project and involves deliberation of all the parties involved in a construction project, CCD is a directive by the owner of the project to the contractor and the engineer refuting the highlighted changes in timeline brought about by CO.

Question 7: Specific Performance

The law of contract provides specific performance as a form of remedy to circumstances where one party did not complete his obligations as outlined in the contract. This type of remedy is commonly applicable in real estate and contracts involving the purchase of land. Following the fact that the contractor failed to deliver his obligation as outlined in the contract, the owner of the house is justified to demand specific performance. Since the building was already completed, the specific performance would be enforced through financial/commercial compensation. It is imperative to underscore that the law of contract allows that specific performance can be discharged through different forms.

Question 8: ABC Case

ABC hotel contracted construction builders to construct a 50-seater capacity luxurious hotel in 1996. The project was anticipated to consume 20 million US Dollars to completion. However,  after one year, the builders reported to ABC hotel that they could not proceed with the construction work due to the duress of financial complications. The hotel management agreed to pay an additional 125,000 dollars to facilitate the completion of the hotel before 1998 since it had been fully booked for the festivities of the year. In March of 1998, before the construction work was concluded, ABC hotel reported to the builders that it would not pay the additional 125,000 dollars.

In light of the highlighted case, and in accordance with the provision of the legal jurisprudence, Hotel Builders are not under any obligation to complete the construction of the hotel as demanded by ABC Hotel. As provided by the law, Hotel Builders are not under an obligation to deliver the promise as demanded since they can invoke the concept of duress. The law of contract provides that duress can be a reason to terminate a contract that would have been otherwise legal by citing that when one is incapacitated to deliver his/her parts of the contract as expected due to frustration, then the law protects such an individual. Consequently, the Hotel Builders are not bound by any law to complete the construction work within the stipulated time since the financial constraints: which the Hotel Management is not willing to address, has restrained their capacity to act.