Canadian Common Law Foundations Flashcards

In Canada, the Criminal Code is federal legislation. Which provision governs the offence of fraud, and what is its essential element distinguishing fraud from theft?

Answer: Section 380 CC; fraud involves deprivation by deceit, falsehood, or other fraudulent means rather than direct taking

Section 380 of the Criminal Code defines fraud as dishonest deprivation of money or property by deceit, falsehood, or other fraudulent means. Unlike theft (s. 322), fraud does not require taking—the deprivation is achieved through deception rather than direct appropriation.

The doctrine of res ipsa loquitur ('the thing speaks for itself') in Canadian negligence law:

Answer: Permits an inference of negligence when an accident is of a kind that ordinarily does not occur without negligence and the defendant had control over the instrumentality causing harm

The SCC in Fontaine v. ICBC [1998] clarified that res ipsa loquitur is not a distinct rule but is simply an evidentiary inference. When an accident is of a kind that ordinarily does not occur without negligence, and the defendant had control, the court may infer negligence. The defendant can rebut by providing an explanation.

Under Canadian tort law, which elements must be established to succeed in a claim for intentional infliction of mental suffering (nervous shock)?

Answer: Outrageous or extreme conduct by the defendant, intended or with reckless disregard to cause harm, resulting in a visible and provable illness beyond mere distress

The SCC in Piresferreira v. Ayotte (ON CA 2010) and Wilkinson v. Downton [1897] (adopted in Canada) require: (1) flagrant or outrageous conduct; (2) calculated or reckless to produce harm; (3) causing a visible and provable illness (not mere upset or distress).

The Canadian law of unjust enrichment requires three elements. Which of the following correctly identifies all three?

Answer: Enrichment of the defendant, corresponding deprivation of the plaintiff, and absence of a juristic reason for the enrichment

Pettkus v. Becker [1980] and Garland v. Consumers' Gas Co. [2004] confirm the three-part unjust enrichment test: (1) enrichment of the defendant; (2) corresponding deprivation of the plaintiff; (3) no juristic reason for the enrichment (e.g., no contract, statute, or legal obligation requiring the transfer).

Which of the following is an example of a contract that is void for illegality under Canadian common law?

Answer: A contract to commit a crime or to obstruct the administration of justice

A contract is void for illegality when its purpose is to commit a crime, tort, or fraud, or to obstruct justice. The courts will not enforce it and generally will not award restitution to a party in pari delicto (equally at fault), though exceptions exist for oppression and statutory protection.

Under Canadian law, which remedy allows a court to rewrite a written contract that does not accurately reflect the parties' actual prior agreement due to a common mistake in the drafting?

Answer: Rectification

Rectification is an equitable remedy that corrects a written document to reflect the true prior concluded agreement of the parties where there was a common mistake in reducing the agreement to writing. The prior agreement must be proved by convincing evidence.