NCA Canadian Common Law Foundations 4 — Questions and Answers
Question 1: In Canadian employment law, the common law 'reasonable notice' period for wrongful dismissal is determined by which factors (the Bardal factors)?
- Only the employee's length of service
- The employee's age, length of service, character of employment, and availability of similar employment (Correct answer)
- The employer's profitability and ability to pay
- The provincial minimum notice period set by employment standards legislation
Correct answer: The employee's age, length of service, character of employment, and availability of similar employment
Bardal v. Globe & Mail [1960] (Ontario) established the factors for assessing reasonable notice at common law: age, length of service, character of employment, and availability of similar employment. These factors have been consistently applied by Canadian courts.
Question 2: The tort of defamation in Canadian law requires a plaintiff to establish which elements?
- That the defendant made a false statement intentionally and with malice
- That the statement was defamatory (tended to lower reputation), referred to the plaintiff, and was published to a third party (Correct answer)
- That the plaintiff suffered measurable financial loss as a direct result
- That the defendant was in a position of trust or authority over the plaintiff
Correct answer: That the statement was defamatory (tended to lower reputation), referred to the plaintiff, and was published to a third party
Defamation (libel or slander) requires: (1) the statement was defamatory in meaning; (2) the statement referred to the plaintiff; (3) it was communicated to at least one person other than the plaintiff. Falsity and damage are presumed once these elements are proved.
Question 3: Which of the following is a defence to defamation in Canadian common law?
- The statement was published in a reputable newspaper
- Justification (truth), fair comment on a matter of public interest, or qualified privilege (Correct answer)
- The plaintiff is a public figure who accepted the risk of criticism
- The statement caused no actual financial harm to the plaintiff
Correct answer: Justification (truth), fair comment on a matter of public interest, or qualified privilege
Recognized defences include: (1) justification (truth is a complete defence); (2) fair comment on matters of public interest (must be opinion, on a matter of public interest, and not actuated by malice); (3) qualified privilege (duty-interest situations); (4) absolute privilege (Parliament, courts). Grant v. Torstar Corp. [2009] added responsible communication on matters of public interest.
Question 4: Under the Statute of Frauds (or equivalent provincial legislation in most Canadian common law provinces), which type of contract must be evidenced in writing to be enforceable?
- All contracts over $500
- Contracts for the sale of land, contracts not to be performed within one year, guarantees, and contracts in consideration of marriage (Correct answer)
- All employment contracts
- All contracts between businesses
Correct answer: Contracts for the sale of land, contracts not to be performed within one year, guarantees, and contracts in consideration of marriage
The Statute of Frauds requires written evidence for: (1) contracts for the sale or other disposition of land; (2) contracts not performable within a year; (3) guarantees (contracts to answer for the debt of another); (4) contracts in consideration of marriage. 'Writing' requires a note or memorandum signed by the party to be charged.
Question 5: The principle of mitigation in Canadian contract law requires that:
- A party in breach must pay interest on damages from the date of breach
- The innocent party must take reasonable steps to reduce their losses following a breach (Correct answer)
- Damages must be offset by any benefit the breach confers on the innocent party
- The innocent party may claim aggravated damages for emotional distress in all cases
Correct answer: The innocent party must take reasonable steps to reduce their losses following a breach
A plaintiff must mitigate their loss by taking reasonable steps to reduce damages after a breach. Failure to mitigate reduces the recoverable damages by the amount the plaintiff could have avoided. However, the plaintiff is only required to take reasonable steps—not to make extraordinary efforts.
Question 6: In Canadian law, a contract that is void ab initio differs from a voidable contract in that:
- A void contract can be ratified; a voidable contract cannot
- A void contract has no legal effect from the outset; a voidable contract is valid but may be set aside at the option of one party (Correct answer)
- A voidable contract requires court intervention to set aside; a void contract is automatically treated as valid
- Only void contracts can give rise to a claim in unjust enrichment
Correct answer: A void contract has no legal effect from the outset; a voidable contract is valid but may be set aside at the option of one party
A void contract has no legal existence—neither party can enforce it and third party rights are generally unaffected. A voidable contract is valid and enforceable until the party with the right of avoidance (e.g., for misrepresentation, duress, or undue influence) elects to rescind it.
NCA Canadian Common Law Foundations 4
In Canadian employment law, the common law 'reasonable notice' period for wrongful dismissal is determined by which factors (the Bardal factors)?