Mixed Deck — All NCA Topics Flashcards

A tribunal issues a decision that conflicts with a clear and unambiguous statutory provision. Under Vavilov, how should a reviewing court characterize this?

Answer: An unreasonable decision because a reasonable decision-maker cannot ignore clear statutory language

Under Vavilov, a decision that ignores or misreads clear statutory language will typically be unreasonable. The reasonableness framework asks whether the decision is justified in light of the legal and factual constraints—clear statutory text is a key constraint.

Judicial review of administrative decisions is typically sought in which court in most Canadian provinces?

Answer: The Divisional Court or the Court of Queen's Bench (or equivalent superior court)

Judicial review of provincial administrative tribunal decisions is sought in the provincial superior court (e.g., Divisional Court in Ontario, Court of King's Bench in Alberta). Federal administrative decisions are reviewed in the Federal Court under the Federal Courts Act.

A lawyer has a conflict of interest between two clients. Under the Law Society of Ontario's Rules of Professional Conduct, when may a lawyer represent both clients?

Answer: When the clients' interests are directly adverse, dual representation is prohibited even with consent; in other cases, informed consent in writing may allow dual representation if the lawyer reasonably believes they can act for both without detriment

Rule 3.4 of the LSO Rules prohibits acting when there is a conflict of interest unless there is no substantial risk that representation would be adversely affected. Where interests are directly adverse (litigation), dual representation is prohibited even with consent. In other situations, informed consent in writing may allow it if the lawyer can competently serve both.

Under the doctrine of stare decisis in Canada, which court's decisions are binding on which courts?

Answer: The Supreme Court of Canada binds all courts; provincial Courts of Appeal bind all courts within the province; trial courts are bound by all superior court decisions in their hierarchy

The Canadian stare decisis hierarchy: the SCC binds all Canadian courts. Provincial Courts of Appeal bind all lower courts in the same province. Trial courts must follow Courts of Appeal from other provinces as highly persuasive but not binding. Horizontal stare decisis (courts bound by their own prior decisions) applies with some flexibility at the appellate level.

Which Canadian case established that administrative decision-makers interpreting their own constituent statutes are entitled to reasonableness review rather than correctness?

Answer: Both A and C, which jointly established this principle

Both Dunsmuir [2008] and Vavilov [2019] established this principle, though Vavilov refined and strengthened it. Dunsmuir created the modern framework with a presumption of reasonableness for tribunals interpreting their home statute; Vavilov consolidated and clarified it.

In legal writing, a 'factum' in Canadian courts refers to:

Answer: A written legal argument submitted to an appellate court that sets out the facts, issues, law, and submissions of a party

A factum (plural: facta) is the written advocacy document submitted to Canadian appellate courts. It contains: a statement of facts, issues in dispute, the applicable law and argument, and the requested relief. Rules of court prescribe its format, page limits, and content.

What are the main categories of criminal offences in the Canadian Criminal Code?

Answer: Summary conviction offences (less serious, maximum 2 years less a day), indictable offences (more serious, varying maximums including life imprisonment), and hybrid/dual procedure offences (Crown elects the procedure)

Canada classifies criminal offences as: (1) Summary conviction — less serious, tried in provincial court, maximum penalty 2 years less a day and/or $5,000 fine; (2) Indictable — more serious, may be tried by judge alone or judge and jury, penalties up to life imprisonment; (3) Hybrid (dual procedure) — the Crown elects to proceed summarily or by indictment. Canada does not use the terms 'felony' or 'misdemeanour.'

Canada's Constitution can be amended through multiple formulas. Which matters require the unanimous consent of Parliament and all ten provincial legislatures under s. 41 of the Constitution Act, 1982?

Answer: Changes to the amending formula itself, the office of the Queen, and representation of provinces in the Senate

Section 41 requires unanimity for: (a) the office of the Queen, Governor General, or Lieutenant Governor; (b) the right to a minimum number of senators per province; (c) use of the English or French language; (d) composition of the Supreme Court; (e) the amending formula itself.

What is the legal significance of the Royal Proclamation of 1763 in Canadian law?

Answer: It recognized Aboriginal land rights, established principles for the treatment of Indigenous peoples, and created a process for Crown acquisition of Indigenous lands — it is considered a foundational document of Aboriginal rights in Canada

The Royal Proclamation of 1763 is recognized as a foundational document for Aboriginal rights in Canada. It reserved large tracts of land for Indigenous peoples and prohibited private purchase of Indigenous lands, requiring any land acquisition to be made through the Crown following a public meeting with the affected nation. It has been described as an 'Indian Bill of Rights' and continues to inform Aboriginal title claims.

What are the four unities required to create a valid joint tenancy at common law?

Answer: Possession, interest, title, and time

Joint tenancy requires unity of possession, interest, title, and time — all co-owners must hold identical interests, acquired simultaneously under the same instrument.

What is the constitutional significance of the preamble to the Constitution Act, 1867, which references 'a Constitution similar in Principle to that of the United Kingdom'?

Answer: The SCC has used it to imply unwritten constitutional principles such as judicial independence

In Reference re Remuneration of Judges of the Provincial Court [1997] the SCC held that the preamble imports unwritten constitutional principles—including judicial independence—into Canadian constitutional law, giving them enforceable legal status.

Under the CCQ, what is the prescriptive period for actions based on bodily injury caused by others?

Answer: The injured person has until age 30, or 3 years from the day they turned 18, whichever is later

CCQ art. 2926.1 provides that an action for bodily injury arising from an act that could constitute a criminal offence prescribes three years from the day the victim knew or should have known the link between the injury and the act. The general rule for most tort claims (CCQ art. 2925) is three years, but special rules extend protection for minors and victims of violence.

A provincial law requires all signs in shopping malls to be in French only. A challenge is brought under s. 2(b) of the Charter (freedom of expression). The government seeks to justify it under s. 1. Which is the most legally accurate outcome based on SCC jurisprudence?

Answer: The law violates s. 2(b) but may be saved by s. 1 if French-only is minimally impairing

In Ford v. Quebec the SCC held that commercial expression is protected by s. 2(b). A French-only sign law violates s. 2(b). However, a French-predominant requirement could pass s. 1 as minimally impairing, whereas French-only does not pass minimal impairment.

The Canadian test for establishing a duty of care in negligence cases was reformulated by the SCC in which case, building on Anns v. Merton London Borough Council?

Answer: Cooper v. Hobart [2001]

Cooper v. Hobart [2001] (along with Edwards v. Law Society of Upper Canada) refined the Anns/Cooper test: (1) Is there a sufficiently close relationship (proximity) to give rise to a prima facie duty? (2) Are there policy reasons to negate or limit the duty? This is the standard Canadian test.

Under the equitable rules derived from Tulk v Moxhay, which of the following is NOT a requirement for a restrictive covenant to run with the burdened land?

Answer: The covenant must be registered in the local land titles office

Registration is a requirement under provincial land titles statutes to bind subsequent purchasers for value, but it is not one of the four Tulk v Moxhay equitable requirements for the covenant to run with the land.

The defence of ex turpi causa non oritur actio in Canadian tort and contract law provides that:

Answer: A court may decline to award a remedy where doing so would allow the plaintiff to profit from their own serious illegal or immoral conduct

Ex turpi causa ('from a dishonorable cause no action arises') allows courts to refuse relief when granting it would allow a plaintiff to benefit from their own serious criminal or immoral conduct. The SCC in Hall v. Hebert [1993] limited its application in tort to situations where allowing recovery would stultify the criminal law.

Under the CCQ, which type of security interest over movable property replaces the old common law concept of a chattel mortgage in Quebec?

Answer: Hypothec on movables (hypothèque mobilière)

The CCQ replaced the fragmented pre-1994 Quebec security law with a unified hypothec concept. A hypothec (mobilière or immobilière) is the primary consensual security interest over both movable and immovable property. Movable hypothecs (with or without delivery) replace chattel mortgages, conditional sales, and floating charges.

Which writ compels a public authority to perform a public duty it has refused or failed to perform?

Answer: Mandamus

Mandamus ('we command') compels a public authority to perform a ministerial or public duty where it has jurisdiction and a duty to act. It is available when the authority has refused to exercise a power it is legally obligated to exercise.

Under the doctrine of unconscionability in Canadian contract law, when may a court refuse to enforce a contract?

Answer: Where there is an inequality of bargaining power combined with an improvident bargain, such that enforcement would be unconscionable

Canadian courts (following Harry v. Kreutziger [1978] BC and Morrison v. Coast Finance Ltd. [1965] BC) will refuse to enforce a contract where: (1) there is inequality of bargaining power; (2) the stronger party took advantage of it to impose an improvident or oppressive bargain. Both elements must be established.

Which document is the supreme law of Canada that makes any inconsistent law of no force or effect?

Answer: The Constitution Act, 1982

Section 52(1) of the Constitution Act, 1982 declares it the supreme law of Canada and renders any inconsistent law of no force or effect. The 1867 Act established Confederation but lacked this supremacy clause.