Canadian Common Law Foundations Flashcards

In Canadian employment law, the common law 'reasonable notice' period for wrongful dismissal is determined by which factors (the Bardal factors)?

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.

The tort of defamation in Canadian law requires a plaintiff to establish which elements?

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.

Which of the following is a defence to defamation in Canadian common law?

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.

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?

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.

The principle of mitigation in Canadian contract law requires that:

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.

In Canadian law, a contract that is void ab initio differs from a voidable contract in that:

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.