MGSC30 Quick Reference Sheet – Key Tests, Frameworks, and Requirements

STEPS TO SOLVE A LEGAL QUESTION

1. Read the case carefully and identify the material (important) facts
2. Identify the relevant legal issues:
a. What do I need to find out? What legal problem needs to be analyzed?
b. Sometimes you need to address several issues, but you need to deal with one
issue at a time
3. State the law or legal test
4. Provide an analysis - apply the law to the facts and make arguments in support of
your analysis
5. Provide a conclusion, that flows from and can be supported by your analysis

BUSINESS ORGANIZATIONS I: SOLE PROPRIETORSHIPS AND PARTNERSHIPS

3 Part Test for a Partnership

1. Two or more people

2. Carrying on a business together
3. Common view to profit

BUSINESS ORGANIZATIONS II: TRUSTS, CORPORATIONS AND AGENCY

Creating a trust
1. A person/party gives money/property in trust
2. To the trustee/trustees, who hold the legal title
3. For the benefit of the beneficiary/ies
4. Formalities (other requirements) are usually completed before its official
Creating a corporation:
1. Incorporated federally/provincially
2. Create: name of firm, number/types of authorized shares, number of directors, restrictions
on shares
3. Have a certificate of incorporation issued by registrar
4. Have a founding meeting - where first directors meet and issue shares to shareholders
Piercing the corporate veil requirements:
1. Shareholder must control firm
2. Control was exercised to commit fraud/breach of duty
3. misconduct is the cause of the plaintiff’s damages:

BUSINESS ORGANIZATIONS III:CORPORATE GOVERNANCE AND REMEDIES

BUSINESS ORGANIZATIONS IV:CORPORATE GOVERNANCE ISSUES

TORTS I: NEGLIGENCE

Key elements of negligence

MGSC30 Quick Reference Sheet – Key Tests, Frameworks, and Requirements

1. Defendant owed the plaintiff a duty of care

2. Defendant’s conduct breached the duty
3. Defendant’s conduct caused the injury or damage that the plaintiff suffered

TORTS II: PRODUCT LIABILITY, PROFESSIONAL LIABILITY AND SELECTED

INTENTIONAL TORTS
The questions to ask in a tort liability framework are:
1. Duty of Care – Is there a duty of care that includes the other person/party?
a. 3-part test to determine if a new duty of care should be recognized:
i. Reasonable foreseeability of harm
ii. Proximity of relationship between parties
iii. Public policy reasons not to recognize duty of care (floodgates)
b. In setting the Standard of Care courts must balance:
i. How likely is it that harm will result?
ii. How severe would the harm be?
iii. How socially useful is the activity?
iv. How possible is it to minimize the risk?
v. Other public policy considerations (e.g. flood gates)?
2. Breach of the Duty of Care – Was there a breach of that duty of care? Did the person fall
below the standard of care?
3. Causation – Did the actions of the person/party cause the injury/damage?
a. But for test – Would the injury have occurred “but for” the actions (or omissions) of
the defendant?
b. Remoteness – Was the harm suffered reasonably foreseeable?
c. Plaintiff can plead a legal presumption “res ipsa loquitur” (the thing speaks for
itself), based on the concept that the most likely cause of the plaintiff’s injury is the
negligence of the defendant
4. Damages – Did the other person/party suffer injury/damage?
a. Extent of the Damages – If A is liable in negligence to B, how extensive can B’s
damages be?oIf some sort of damage to B is reasonably foreseeable, then ALL of B’s
actual, direct damages are compensable

Deceit

1. Person makes a false statement, which they know is false or have no honest belief in its
truth OR person conceals OR withholds information
2. With the intention to mislead
3. WITH NO INTENTION - it is negligent misrepresentation

CONTRACTS I – INTRODUCTION, OFFER/ACCEPTANCE, CONSIDERATION, PRIVITY

Contracts: Forming the contract

1. Elements to create a contract (3 Part test):
a. Intention to create legal relations
MGSC30 Quick Reference Sheet – Key Tests, Frameworks, and Requirements

i. Objective test - would a reasonable person say the parties had this intention
b. Mutual agreement through process of offer and acceptance
i. Consumer goods, standard contracts, reject/counter offer, acceptance,
negative option/opt out, Postal Rule, e-commerce, unilateral contract
c. Exchange of consideration (i.e. money, items, services)
i. Adequacy sufficiency - are all elements of the contract met? And is the “true
value” of the contract considered
ii. Timing - pre existing obligations

Creating new contract to replace old

1. Novation
a. Used to replace or introduce new parties. If new parties are introduced, it shares
both perks and liabilities to the new party
2. Vicarious performance (Having someone else perform - No liabilities for them)
a. Requirements to arrange:
i. Both parties (A and B) need to agree that C can perform for A
ii. A must be indifferent as to who performs
iii. Not a form of assignment

Assigning Contractual rights

1. Requirements:
a. Assignment was absolute (unconditional and complete)
b. Assignment was in writing
c. Promisor or debtor received notice of it in writing
2. Having multiple assignees
a. promisor/debtor will pay whichever notice (s)he receives first
b. If promisor does not know who to pay first, (s)he may pay the money to court and
let the court decide

CONTRACTS II – DEFECTS IN CONTRACT/AVOIDANCE OF CONTRACT

Capacity to contract
1. Minors
a. Allowed to walk away from all obligations. Contracts are voidable at their opinion
even if party is unaware of age
b. Must return ALL benefits obtained under the contract
2. Mental incapacity/intoxication
a. Voided for anyone declared incapable
3. Illegality
a. Voided and are not enforceable since they are illegal

Misrepresentation 3 Part test

1. A statement of prior or existing fact (not opinion)
2. That is false when made; and
3. Statement influences the party hearing it to enter into the contract
MGSC30 Quick Reference Sheet – Key Tests, Frameworks, and Requirements

Rescinding the contract

a. Innocent - have the right to rescind only if obligation hasn’t been performed
i. Requirement:
1. Goods can be restored to them (can't be resold/consumed)
2. 3rd party is not negatively affected
3. Rescission must be asked promptly after learning of the
misrepresentation
b. Negligent/Fraudulent - Can rescind, and apply remedy for damages against
wrongdoer
4. Remedy for Negligent/Fraudulent (Arguments to sue)
a. Undue influence
i. Abusing the relationship as one party has more power than the other. If no
fiduciary relationship, party must prove influence
b. Duress
i. When one party enters into a contract due to threats - economic duress
(financial) or duress of goods (damage/destroyed goods)
c. Unconscionable Transactions
i. One-sided transactions where “no right-minded person would ever
make/accept the contract”

Mistake (Common, Mutual, Unilateral) in contracts

1. Requirements to rectify mistakes
a. Must be an agreement
b. Agreement must not be uncertain or ambiguous
c. Agreement must not be conditional
d. No further negotiations to amend, change

CONTRACTS III – DISCHARGE, BREACH, AND REMEDIES

Discharge by frustration

1. Incapability to perform due to events/situations radically different than what

parties contemplated at time of agreement
2. Impossible to perform, not just more difficult
3. Events occur after contract formation - before is mistake
4. Not self induced

LABOUR AND EMPLOYMENT LAW

Employment VS Contractor
1. Key tests:
a. Does organization have the ability to control where, when, and how work is
completed*
b. Is a worker free to work for others?**
MGSC30 Quick Reference Sheet – Key Tests, Frameworks, and Requirements

c. Does the organization have the right to discipline the worker?*

d. Can worker sub-contract or hire others**
e. Are services of the worker essential to the business*
f. Are resources and tools required for work provided?*
g. Does the worker bear financial risk?**
* Yes = Employment
**No=Employment

Terminating an employee
1. Minimum and maximum termination notice:
a. X years = X weeks. Max 8 weeks, Min 1 week
2. Termination for Cause/Summary Dismissal
a. No notice required
b. Employer must have cause/justification
c. Conduct investigation
d. Misconduct by employee:
i. Criminal conviction
ii. Bring business into disrepute
iii. Disturb morale
iv. Cause financial loss
e. Disobedience - repeated/willful disobedience of reasonable/lawful order
f. Incompetence - Lack essential skills
g. Conflict of interest

PRIVACY AND INTELLECTUAL PROPERTY LAW

CORPORATE CRIME AND CORPORATE LITIGATION

REGULATION OF FINANCIAL SYSTEM