musings from a new legal apparatus.
The Alien Tort Claims Act (ATCA) was originally passed as anti-piracy statute back in the 1800s. However, it came back to prominence in the 1980s. The -act states that if you are a non-US citizen your claim can be heard in a federal court, but your claim has to vis either a violation of treaty or a violation of custom.
Continue reading “Customary International Law in US litigation under the Alien Tort Claims Act”
Here are some introductory points on the tort of negligence.
The Elements of a Negligence Action –
Remember, the plaintiff usually has the burden of proving the first five, while the defendant has the burden of proving the sixth.
1. Duty of Care (limiting step) – there are policy considerations that can lead to the finding and non finding of a duty of care; this duty of care exists when it is reasonably foreseeable that your actions will have an effect on another person.
2. Standard of Care and its Breach – in most (but not all) negligence actions, the standard of care is the reasonable person standard .
3. Causation – has the breach of the duty of care caused an injury to the plaintiff? But for the breach of the duty of care, would the injury have occurred?
4. Remoteness of Damages (limiting step) – also called legal causation; if the damages are found to be too remote from the breach of the standard of care, then the plaintiff will not win the case.
5. Actual Loss – without loss, the plaintiff will not be successful (as opposed to intentional torts)
6. Defences – voluntary assumption of risk, illegality
Most injury lawyers will work on an agreement that they’ll be paid out of the settlement you receive. That means they’ll work for free. Kind of. Sometimes payments, especially those that go on for a long period of time, will amount to 40-50% of your settlement. The total value is dependent on how complex and long your case is.
It can amount to a lot of cash tomorrow, but generally this is the only way one can afford representation.
Continue reading “How Much Should You Pay for an Injury Attorney?”
The rules of employment contracts are similar to the rules of contract in general. For example, as per the freedom of contract, one is fully entitled to choose whether or not they want to enter into a contract. This applies to employment contracts as well. Employers are free to decide whether or not they want to enter into a contract with you i.e. hire you. Just like in regular contracts, the principles of offer, acceptance, consensus ad idem, etc are necessary to form an employment contract. An employer cannot unilaterally impose a contractual term onto an employee.
We all have to get insurance if we do certain things like drive. Other forms of insurance are ways of mitigating risk, like life insurance or home insurance.
To complicate matters there are a variety of forms of insurance one can purchase to protect the same thing. Life insurance has ‘term insurance’ or the much maligned ‘universal life‘, but there thousands of iterations.
But what happens if you need to make a claim?
Have you heard of horror stories that upon purchase of a new home, a couple may encounter that there are no appliances. Not just a microwave or toaster oven, but the fridge, range, washer and dryer, all gone?
It happens all the time.
You have to declare in the sale what items are included with the purchase, they are called chattels.
Continue reading “Pay Attention to the Fine Print – Chattels”
When you’re involved in a collision you may face a range of injuries to your neck. Whiplash is a soft tissue injury to the neck. It can also be called a neck sprain or neck strain. Whiplash is characterized by a collection of symptoms that occur following damage to the neck, usually because of sudden extension (bending the neck backwards) and flexion (the bending of a joint so that the bones forming the joint are brought closer together).
Paying close attention to your injury, and giving yourself ample time to heal, are critical components before proceeding with any legal action in a vehicle collision.
The disorder often occurs as the result of an car accident and may include injury to intervertebral joints, discs, and ligaments, cervical muscles, and nerve roots. Symptoms such as neck pain may be present directly after the injury or may be delayed for several days. In addition to neck pain, other symptoms may include neck stiffness from injuries to the muscles and ligaments (also known as myofascial injuries).
For a more comprehensive list of the different types of WAD injuries visit Conway Injury Law Calgary and their post on WAD 1, 2, 3.
As per labour relations legislation, some employees are excluded from collective bargaining. In the past this exclusion has survived Charter scrutiny as it has been held that the freedom of association and freedom of speech do not guarantee a right to collectively bargain. However, newer case law seems to suggest that there is a Charter protected right to collectively bargain. In Health Services, it was held that the Charter includes a procedural right to collectively bargain, but does not guarantee particular objectives. Further, the Charter does not protect all aspects of associational activity, only those which constitute a substantial interference with associational activity. Notably, Bill 5 in SK designates certain employees as “essential services”, and restricts their rights to collectively bargain.
Generally, independent contractors are excluded from collective bargaining. It is believed that they are financially independent enough such that they do not require the protection of collective bargaining. Either of the tests above can be applied to determine if an individual is a contractor or an employee.
When it comes to wrongful dismissal, the main job of the court is to determine what is reasonable notice (i.e. you get paid money to compensate you). This is an implied term of the employment contract as per common law. There are two main approaches to determine reasonable notice. The oft-cited Bardal approach where the court considers such factors as the character of employment, length of service of the servant, age of the servant and availability of similar employment (most important) having regard to the experience, training, and qualifications of the servant. The Bardal approach is augmented with by the Lazarowicz approach, approved by the SK QB in Bartlam. Here, the court imagines that the employer and the employee had sat down at had a chat at the time the employee was hired. How much of a notice period would they have agreed upon? This approach is useful because it takes it flexibly takes into account factors such as the economic situation, norms of the industry and so on.