Contracts govern many aspects of our day-to-day lives—they are one of the fundamental ways that society is ordered. You likely engage in dozens of activities governed by contract every day, usually without considering the legal relationships you are entering into and engaging in.
At its most fundamental level, a contract is an agreement that will be enforced because it represents the communication of a commitment to engage in a reciprocal measured exchange – in other words, the exchange of valuable promises that in turn create obligations to do or not do something.
Communication and exchange are central to the formation of a contract. For a contract to be formed there must be offer and acceptance, and there must be consideration (something of value must be exchanged… contracts are not the same as gratuitous promises, where one of the parties receives no benefit of value).
While there are many more rules that relate to when and how contracts are formed this basic definition can help us understand when we might enter into a contract.
In this post we will discuss some everyday activities you likely engage in, and their contractual nature.
We can consider a few examples from my day today:
The first thing I did when I woke up was to check my phone and respond to emails. I have a contract with my phone company—in consideration for me paying a certain fee every month, they provided me with a phone, as well as with access to their cell towers. I accepted this offer when I signed my phone contract and began using their service.
When I checked my email account, I was in a contractual relationship with Google. When I send or receive content through a Google Service I give Google and its affiliates a worldwide license to use that content for certain purposes, per the Google Terms of Service. As consideration for those licences, Google provides me with access to its Services. Google offers these services publicly and I enter into a contract by creating an account and agreeing to the Google Terms of Service.
Dealing with email is hungry work, so I decided to grab breakfast at a campus coffee shop. I ordered a bagel and a large tea. The cashier told me that the total would be $5.05, which I paid in cash. Two minutes later I was handed a bagel and a large tea.
When I handed the cashier the money, I entered into a contract with the coffee shop. As consideration for a bagel and a large tea, I provided $5.05. I communicated my acceptance of their posted offer to provide tea and a bagel for $5.05 by ordering from the cashier and providing money. They fulfilled the terms of the contract by providing me with my food and beverage.
As you’ve seen, contracts have already been a part of just the very beginning of my day. Take a minute to think about your day so far: what have you done that has involved an offer, acceptance, and consideration? How many contracts have been involved with in the past hour? Can you think of one or more contracts that are allowing you to read these worlds right now?
Contracts are central to the ordering, not only of big businesses, but our everyday lives.
– Isabelle Crew
For the average Canadian, the Constitution can seem pretty abstract. How does it affect me, a normal person, in a daily way? The answer is profoundly. For a clearer understanding of why public and constitutional law matters so much, we sat down with Jonathan Shanks, who has developed Law 205/705, Public & Constitutional Law, which launches this summer as part of the Certificate in Law. He breaks down why the constitution and public law matter so much to all of us, every single day.
People sometimes think that public and constitutional law is an abstract concept – big ideas that don’t affect our daily lives.
They couldn’t be more wrong.
The rule of law, constitutional rights, judicial review, and federalism—these are central issues in public and constitutional law that affect us in a real and practical way.
At its most fundamental level, to understand public law and constitutional law is to understand power.
Specifically, how governments exercise power, and the relationship between the exercise of that power and the public.
Public and constitutional law establish the institutions and organs of government and grant them powers, but they also limit the exercise of government power. This ensures that power is not exercised arbitrarily, unequally, or absolutely. This defines how the government interacts with you!
Rule of Law
The Supreme Court of Canada has recognized the rule of law as a fundamental aspect of Canada’s Constitution. For example, in British Columbia v Imperial Tobacco, the Supreme Court of Canada stated that the rule of law embraces three interrelated principles:
- The law is supreme over all;
- Society must be governed by law;
- The relationship between the state and the individual must be regulated by law.
These rule of law principles provide stability and predictability in the legal system.
Entrenched in the Constitution Act, 1982, the Canadian Charter of Rights and Freedoms provides constitutional protection for human rights in Canada. The Charter includes provisions ensuring Fundamental Freedoms, Democratic Rights, Mobility Rights, Legal Rights, Equality Rights and Language Rights. The Charter is part of the supreme law of Canada. Laws enacted by Parliament and the legislatures and all government action must be consistent with the Charter. Any limits on Charter rights must be justifiable in a free and democratic society. The Charter also provides that “[a]nyone whose rights or freedoms, as guaranteed by [the] Charter, have been infringed” may apply to a court to have that infringement remedied. Charter rights are another important restraint on government power and how the law can impact us.
Judicial review generally refers to the process through which the exercise of legal power can be challenged in the courts. The Courts can review both laws and government action for compliance with the Constitution and other legal norms. Courts are not the only bodies that can make legal decisions. Parliament and the legislatures have established a wide range of administrative tribunals. These are designed to be less cumbersome, less expensive, less formal, and less time-consuming than courts. Tribunals can often resolve disputes in their area of specialization more expeditiously and more accessibly. Examples of tribunals include the Ontario Human Rights Tribunal, the Ontario Labour Relations Board, the National Energy Board, and many, many others. Because these bodies are delegated power by legislation, their authority is confined to the bounds of the delegation—another example of the rule of law at work! To avoid arbitrary, unreasonable, and biased, those who are affected by the decisions of these bodies can apply to the courts to have these decisions reviewed.
Federalism refers to the constitutional division of the power to make laws between the federal Parliament and the provincial legislatures. Federalism is one way that the Constitution recognizes the unity of Canada with the diversity among the provinces. Matters of national importance tend to be within the authority of the Parliament of Canada, while local matters are left to the Provinces. For example, the federal Parliament can make laws in relation to, among other things: trade and commerce, currency, criminal law, banking, and national defence. The provincial legislatures can make laws in relation to, among other things: property and civil rights in the province, municipal institutions, and the administration of justice.
Interpreting the division of powers can be legally complex, but on a day-to-day level it impacts whether you are interacting with the federal or provincial government.
— Isabelle Crew
Dive into the amazing world of case research with professor Mary Jo Maur, developer and instructor of Law 201/701 — Introduction to Canadian Law in this edition of the podcast! We plunge into the amazing world of CanLII, a Canadian online database that collects court decisions from across the nation, with a dizzying array of search options and ways to find exactly the information you’re looking for.
It’s pretty amazing! Mary Jo walks us through how to find almost anything related to court outcomes on CanLII, and also some valuable pointers on how to read the cases once you find them. If you’ve ever wanted to know — well, anything — about court cases and outcomes from coast to coast, this is 20-odd minutes you won’t regret spending with us.
Chances are you’ve seen or heard the name of a legal case. Lawyers call this the “style of cause.” Once you’ve cracked the code for a style of cause, there’s a lot of information in one short title!
Format: A v B
Styles of cause are formatted in the same basic form:
Name of Plaintiff v Name of Defendant/ Respondent
The plaintiff is the person bringing the case before the court. The defendant/respondent is the person who must defend the charge or respond to the claim. Where there are multiple plaintiffs and/or defendants, the name of the first plaintiff and defendant, respectively, will be used.
What do names mean?
A natural person (an individual human, rather than a private or public organization) is represented in a style of cause by their last name. Therefore, If Bill Smith is suing Bob Jones, the style of cause will be Smith v Jones.
Corporations are also legal persons. In a style of cause a corporation is represented by its official corporate name. Therefore, if General Motors is suing City National Leasing, the style of cause will be General Motors of Canada Ltd v City National Leasing.
Other types of legal persons can also bring and respond to legal cases and will represented by their official names. These types of legal persons include non-governmental organizations, First Nations, Crown Corporations, etc.
“R” stands for Crime (sort of)
In a criminal case, the person bringing the case is the Crown. In a criminal case the name of the “plaintiff” is represented by the letter R—this is short for Regina (Queen) or Rex (King). Therefore, if John Brown is being charged with a criminal offence, the style of cause will be R v Brown.
…but the government is more than “R”!
R is not the only way to represent a government entity in a style of cause. Cases can also be brought by or against a government entity in the form of challenging the constitutionality of law or a decision made by the government entity. For example, if Terri Jean Bedford is challenging the constitutionality of a federal law, she will bring the claim against Canada, as represented by the Attorney General. The style of cause will be Bedford v Canada (Attorney General). If Grassy Narrows First Nation brings a case challenging the decision of the Ontario Ministry of Natural Resources, the style of cause will be Grassy Narrows First Nation v Ontario (Natural Resources).
Don’t say “vee!”
In Canada, the “v” separating the two parties is not pronounced “vee” when speaking. We just say “and”. Americans say “vee”, and you’ve probably heard this on TV, but avoid a rookie mistake in Canada and say “and” when dividing the names of parties to a proceeding!
– Isabelle Crew (3L, Faculty of Law, Queen’s University)
Is partnership the right business move? Could you be in a partnership without even knowing it? We’re joined by corporate lawyer Peter Kissick, a faculty member here at Queen’s and developer of Law 204/704: Corporate Law for the Certificate in Law. He demystifies one of the central types of business structures, and lays out the advantages — and dangers — of partnership.
Who shares what? Who’s at risk? How can you be in a partnership without meaning to… and how can you get out of it? Peter walks us through all of it in a quick, entertaining overview of what partnerships mean, and why he’s known as the “Angel of Doom” to certain clients, in today’s business context.
Partnership is a foundational element of the law of business organization. To understand a partnership, you have to consider four simple and foundational questions:
When does the partnership exist?
In Ontario the Partnerships Act establishes the basic rules of partnerships. Other provinces and territories have their own partnership regulations, but the principles are usually much the same as Ontario’s. The Partnerships Act defines partnerships as “the relation that subsists between persons carrying on a business in common with a view to profit”. So a few elements must be present for a partnership to exist:
- More than one person must be…
- In a relationship with each other that involves…
- Carrying on a business together…
- With a view to making profit.
This definition is based on the intention of parties, as disclosed by the circumstances. Did two people intend to carry on a business together with a view to making profit? If they did, a partnership will have been created.
The extent of each person’s investment in or, control of the partnership business will not define whether or not the partnership exists.
What is the legal status of the partnership?
A partnership is not recognized as a separate legal entity. It is not legally distinct from the partners that form it. This means…
- Each partner is liable to the full extent of their personal assets for the debts and liabilities of the partnership. This means that if the partnership owes money to a creditor, the creditor can enforce that debt against the personal assets of any partner, not just the assets of the partnership.
- A partner cannot be recognized as an employee of the partnership business. This because no person can enter into a contract with themselves. Because a partnership has no legal existence distinct from the individual partners, it is not possible to be an employee and partner at one firm at the same time because it would involve employing yourself.
- Except in very particular circumstances provided for in the Partnerships Act, a partner can’t be a creditor of their partnership. Again, this is because it isn’t legally possible to contract with yourself, and this includes contracts to lend money.
What are the rights and responsibilities of the partners?
Under the Partnerships Act, there are eight key rights and responsibilities of partners. These rights and responsibilities emanate from the basic assumption that the partners are equal with respect to their capital contributions, rights to participate in the management of the business and rights to share in the profits of the business.
- All partners are entitled to share equally in the capital and profits of the business. They therefore have the responsibility to contribute equally to the losses sustained by the partnership.
- Every partner is entitled to take part in the management of the partnership business.
- New partners may not be added to the partnership without the consent of all the existing partners.
- Changes to the nature of the partnership may not be made without the consent of all the existing partners.
- A partner cannot be removed from the partnership without their consent.
- A partner is jointly liable with other partners for all debts and obligations of the firm as long as they are a partner.
- A partner is an agent of the partnership. This means that they can bind the firm and the other partners when acting in the course of their duties.
- As an extension of their agency, each partner owes a “fiduciary duty” – and duty of good faith – to all other partners.
What are the terms of the partnership?
The rights and responsibilities of a partner as set out above are the baseline rule established by the Partnerships Act. However, one of the most important elements of the law of partnership is that a partnership is a contractual relationship. Partnerships can be as varied as the people who are partners – partners can contract their particular rights and responsibilities, which can be different from the baseline rights and responsibilities established in the Partnerships Act. However, where a partnership contract is silent on a particular issue, the Partnerships Act’s terms for that issue will be implied.
– Isabelle Crew (3L, Faculty of Law, Queen’s University)
We’re joined once again by Queen’s Law professor, and developer of the Law 201/701 Criminal Law module, Lisa Kerr. The topic: presumption of innocence. Why is it the bedrock of our criminal justice system? How does it level the playing field of one person versus all of society? And… is it really as venerable and ancient a principle as we think it is? Lisa joins us via Skype from New York to talk about all of this, and more!
At the most fundamental level, criminal law is based around a single Latin phrase: “Actus non facit reum nisi mens sit rea”, which translates to “an act does not make a person guilty unless the mind is also guilty”. This means that a crime consists of two elements: the commission of a guilty act, known as actus reus, and the presence of a guilty mind, known as mens rea.
For example, section 322 of the Criminal Code defines theft as follows:
322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it…
We can see there are both actus reus and mens rea elements of this offence. The actus reus of theft is taking something without colour of right (something that isn’t yours), the mens rea is intending to deprive the owner of the thing taken.
For actus reus to be made out there must be a voluntary commission of an unlawful act. All actions are presumed to be voluntary, but the defence can argue that there was no actus reus because the defendant had no voluntary control of his or her actions. This was the case in R v Parks, where the accused presented evidence that he was sleepwalking at the time he killed his mother and father in law. The Supreme Court of Canada upheld Mr. Park’s acquittal on the basis that he was not acting voluntarily.
Additionally, where the offence charged includes the occurrence of specific result, the fact that those consequences occurred is another element of actus reus. For example, section 222(1) of the Criminal Code provides that “A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.” Causing death is therefore a necessary requirement for the actus reus of homicide. In determining causation the question we ask is, whether, but for the actions of the accused, would the result have happened?
Courts presume that criminal offences require some form of subjective mens rea—intent, knowledge, recklessness, or willful blindness—in relation to all aspects of the actus reus unless Parliament clearly indicates otherwise.
For some offences, Parliament has indicated that mens rea is not required. These are known as strict liability offences. For a strict liability offence it is not necessary for the Crown to prove the existence of mens rea—the act itself is the entire offence. If charged with a strict liability offence, the accused may advance the offence that they took all reasonable steps to avoid the act. An absolutely liability offence is similar, but the accused is not able to advance a defence of this nature.
So when you’re wondering if something is a crime, start with “brains and brawn,” and ask yourself if criminal intent and criminal action were both present. As we’ve seen, there are exceptions, but it’s a reasonable place to start.
– Isabelle Crew (3L, Faculty of Law, Queen’s University)
Thought balloon in illustration courtesy Freepik.
We all know that the Canadian federal government is decriminalizing marijuana, but what does that mean? Queen’s Associate Dean Academic, Cherie Metcalf, is here to explain how the federal government and provincial governments are legally linked, and how that intricate relationship is key to understanding how pot decriminalization will happen. Cherie is also the creator of the Constitutional Law module for Law 201/701 in the Queen’s Certificate in Law — to find out more about the only online certificate in law offered in Canada by a law faculty, visit http://takelaw.ca.