'Notwithstanding clause' of the Canadian Constitution

Throughout the Constitutional negotiations, the Premiers maintained that the Charter posed a threat to provincial autonomy. Explain their concerns. Do you agree with the Premiers’ assessment? Why or why not? As a compromise, Trudeau agreed to include Section 33 (Notwithstanding Clause) in the Charter. What does this clause allow, and do you believe its’ inclusion was a mistake? Why or why not?

In 1970s and 1980s, there were efforts by the provincial and Federal Governments, for modernizing the Constitution of Canada. There were prolonged negotiations in this exercise and most important part of the negotiations focussed on the replacement of Canadian Bill of Rights by set of freedoms and rights which is entrenched constitutionally (Kallen, 2010).

            The Premiers or Provincial leaders were opposed to the proposal since they apprehended that political power would shift to judiciary from the elected legislatures (Kallen, 2010).

            Canada, till the above mentioned reforms has a government system that is constitutional. The Constitution Acts of 1867 and 1982(Bastien, 2010) along with several other unwritten norms and conventions formed the ‘Constitution’. The Constitution clearly spelt out the power division powers between provincial and federal governments. The Constitution of the country is considered supreme and all actions of government as well as the laws are required to be according to the constitution. The judiciary is vested with responsibility of interpretation of constitutional provisions in case of a conflict of opinions between the provincial and federal governments (Behiels, 2009).

            When the Bill of Rights is finally approved, the charter that is entrenched constitutionally would vest the Courts with additional powers for reviewing elected representatives’ actions apart from interpretation of the constitutional provisions. Such a development is a clear erosion of the powers of the elected representatives and the apprehensions of the premiers were justified (Behiels, 2009).

            In order to allay the fears of the premiers and as a compromise, Trudeau agreed to include Section 33 (Notwithstanding clause) in the charter (Grover, 2005).

            According to the ‘Not withstanding clause’, the Parliament or legislature may declare  expressly in any Act  that the provision approved by them would operate  as notwithstanding which is one provision included within Section 2 or Sections (7 - 15) of the charter(Grover, 2005).

            Section 2 includes fundamental freedoms, sections 7 to 14, the legal rights and Section 15 the equality rights. The ‘Not withstanding clause affects only these rights leaving untouched the other rights like Democratic rights (Sections 3 to 5), Mobility Rights (Section 6), Language rights(Section (16-22) and minority language rights (Section 23).

            I am of the opinion that ‘Notwithstanding Clause’ adversely affects the most important human rights.

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Role and functions of the human rights commissions in Canada

1. Describe the role of the human rights commissions in Canada, its’ purpose and its’ perceived downfalls. What important advances have been made in our understanding of rights and responsibilities as a result of the provincial and federal commissions’ judgments? Use relevant cases when answering the above question.

The Canadian Human Rights Commission (CHRC) was established by the Canadian Government in 1977 as a quasi-judicial body under Canadian Human Rights Act.Its main functions are (Kallen, 2010).

            (a) To inquire about and adjudicate on complaints relating to discrimination in employment and in providing services within the Federal Government’s jurisdiction.

(b) To ensure that equal opportunities are afforded to four specified groups by the employers regulated by the Federal Government. The four groups are women, aboriginal people, the disabled people and visible minorities. These powers are entrusted to the Commission under Employment Equity Act, and

(c) To educate employers and general public of human rights and ensure observance of these rights.

There are some pitfalls about the functioning of the Commission as discussed below(Kallen, 2010).

(a) The Commission suffers from procedural problems. It does not follow the usual rules of evidence followed by normal courts. Hearsay evidence, which cannot be verified by cross- examination, is allowed in the adjudication process by the Commission.

(b) The complainants are given free legal assistance by Human Rights Legal Support Centre while the defendants have to bear their legal expenses even after it is proved that they are not guilty of breaking the law.

(c.)The adjudicators in the Commission are usually political appointees and their adjudications are mired in controversies.

(d) The main strength of the Commission’s enforcement comes from Section13.1 of Canadian Human Rights Act, which states that any exposure of a person or a group of persons to hatred by communication of any matter over phone or internet is discriminatory. There are complaints that CHRC exerts too much power under this section.

(e) The Commission is also criticized for the unduly long time taken by it in adjudication of several numbers of cases.

There are several cases in which the CHRC delivered landmark judgments, which established rights for the specified groups. Brooks v. Canadian Safeway 1989, involving discrimination against pregnant employees is one such case, in which the Supreme Court of Canada recognized that discrimination against pregnant women is discrimination by gender. In Delvin Vriend against a Christian school, his human rights challenge paved way for establishment of rights of a gay.

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Law Assignment Help questions and Answers Part 8

Law Assignment Help questions and Answers Part 8

1.       A and B have a written contract whereby A agrees to sell B a plot of land for $100,000. Later, without terminating the first contract, the parties modify the deal so that A sells B the same plot of land for $125,000.  The second agreement:

            A)   Is not a contract because there is no consideration for A's promise.

            B)   Is not a contract because there is no consideration for B's promise.

            C)   Is not a contract because A's promise is illusory.

            D)   Is not a contract because written contracts for the sale of land cannot be modified.

2.       A and B agree that A will sell B all B's requirements of coal at a stated price per ton.  This agreement:

            A)   Is not binding for lack of consideration, because it contains an illusory promise.

            B)   Is not binding for lack of consideration, because it is a composition agreement.

            C)   Is binding, so long as B's requirements are in good faith, and are not disproportionate to any estimate in the contract or to B's normal previous requirements.

            D)   Is binding.

3.       X and Y contract for X to build Y a house for $150,000. Later, without terminating the first contract, X and Y modify that contract so that Y will pay X $175,000.  In return, X promises to build exactly the same house, but one day earlier than in the previous contract. Assume that all the other elements of a contract besides consideration are present; this is a consideration question. This second contract:

            A)   Is not binding because it is unliquidated.

            B)   Is not binding because X is promising to perform a preexisting legal obligation.

            C)   Is not binding because the earlier completion date is inadequate consideration for $25,000.

            D)   Is a binding contract.

4.A finance company may reject an applicant for a loan on the grounds that the applicant is:

       a. married.

       b. sixty-five or older.

       c. divorced.

       d. none of the above.

5. The Fair Credit Reporting Act applies to:

a- consumer credit.

b. commercial credit.

c. business credit.

d. consumer and commercial credit.

6.  Anyone promoting the sale of a real estate development that is divided into fifty (50) or more parcels of   less  than five (5) acres each must file a(n) _ statement with the secretary of Housing and Urban     Development.

a. developmental impact

b. development

c. environmental impact

d. destructive impact

7. Under which organizational structure would the death of the owner have no iegal effect?

a. a partnership

b. a corporation

c. a sole proprietorship

d. all of the above

8.. In the absence of a fixed duration provision, a joint venture wiii ordinarily terrninate:

a. upon completion of the project.

b. at the will of any participant.

c. as specified in the joint venture agreement.

d. all of the above.

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Law Assignment Help questions and Answers Part7

  Law Assignment Help questions and Answers Part7

Continuing the series of questions on Law after wordpress artcile
http://assignmentdesign.wordpress.com/2011/08/09/law-assignment-help-questions-and-answers-part-6/

1. In general, when are offerees bound by “fine-print” terms stated in offers?  Focus only on the rules regarding offers and do not consider unconscionability.

            A)   Always.

            B)   Only when they actually read the term.

            C)   Only when they had actual or reasonable notice of the term.

            D)   Never.

2.       The State of Indiana agrees with the Ace Construction Company that Ace will do some repair work on a bridge.  The agreement, however, does not specify the exact work to be done, the quality standards Ace must meet, and the time the job must be completed. Also, the agreement states an ambiguous formula for determining Ace's compensation. Later, before either it or the state has done anything, Ace backs out of the job. Then it is sued by the state. Ace defends by arguing that the contract fails because it (or the offer) is indefinite. Which of the following is true?

            A)   Ace's argument is correct and the state cannot recover.

            B)   Ace's argument is no good because here the parties obviously intended to make a contract.

            C)   Ace's argument is no good because here the court has a reasonably certain basis for giving an appropriate remedy.

            D)   Ace's argument is no good because here the parties obviously intended to make a contract, and the court has a reasonably certain basis for giving an appropriate remedy.

3.       In which of the following situations does promissory estoppel make a difference in the law of offer?

            A)   By making option-type promises enforceable and thus blocking the offeror's ability to revoke.

            B)   By doing away with the requirement that rejections and revocations be communicated.

            C)   By making an offer automatically revocable at any time.

            D)   a and b.

4.       Kyle sent Tara a letter offering to sell Tara his car.  Tara left the letter on her desk, where her roommate, Maggie, saw it.  After reading the letter, Maggie wrote to Kyle and stated that she (Maggie) wanted to accept Kyle's offer.  Which of the following is true?

            A)   Kyle must sell Maggie his car unless Kyle is a merchant under the UCC.

            B)   There is no contract between Kyle and Maggie because Kyle did not communicate the offer to Maggie.

            C)   Kyle and Tara have a contract for the purchase of Kyle's car.

            D)   Maggie's letter is a valid acceptance of Kyle's offer.

5.       A so-called "firm offer":

            A)   Requires consideration.

            B)   Arises under Article 2 of the UCC.

            C)   Can be made orally.

            D)   Cannot be made by a merchant.

6.       Which of the following offers terminates earliest? Assume that there is no time limitation on the offer unless the question says otherwise.

            A)   An offer for the sale of land.

            B)   An offer to purchase stock on a stock exchange.

            C)   An offer that says that it will stay open for one week.

            D)   An offer with a valid five-day option attached to it.

7.       Junior is a senior at State University.  Dad, Junior's father, is concerned about Junior's study habits, given that Junior spends most of his evenings at the campus pub instead of the library.  Dad promises Junior that he will send him on an expense-paid trip to Europe after his graduation if Junior spends at least five evenings a week studying in the campus library for the remainder of his senior year.  After returning home from his graduation, Junior asks Dad about the European trip.  Dad replies, “your education was your reward.  I do not owe you a trip to Europe.”  Dad:

            A)   is correct: Junior has already gained a benefit of the bargain.

            B)   is correct: Junior did not give anything of legal value.

            C)   is not correct:  Dad owes Junior a trip to Europe because Junior's acts are consideration .

            D)   is not correct, but only if Junior's acts are adequate consideration for such an expensive trip.

8.       Pip owns Great Expectations, a trendy restaurant in Manhattan. He enters into a contract with Estella, who makes and sells pastries.  The contract states that Estella will “supply all of Great Expectation's needs” for pastries for the next year.  Is this contract enforceable?

            A)   Yes, because this is a requirements contract.

            B)   Yes, but only if Pip buys all of the pastries produced by Estella in the next year.

            C)   No, because the promise fails to specify the quantity of goods to be purchased.

            D)   No, because Pip might not need any pastries in the next year.

9.       Dan, President of BAZ Co., is happy with the extraordinary performance of Naomi, a BAZ Co. senior accountant.  Dan informs Naomi that because of her superlative work in the past fiscal year, he is going to give her a 5 percent raise effective next month  Naomi, who has never heard of anyone at BAZ Co. getting a raise, is thrilled and thanks Dan.  Later that day, Dan realizes that giving Naomi this raise might cause all senior accountants to demand salary increases.  Dan decides not to give Naomi a raise after all.  Dan:

            A)   is correct because there was no bargained-for exchange for the raise

            B)   is correct because of the “preexisting duty" rule.

            C)   Because past consideration is not an act or promise.

            D)   Because past consideration is not liquidated.

10.       X and Y have a contract which obligated X to sell Y 100 boxes of screws for $100.  The parties orally modify the contract so that X will sell Y the same 100 boxes of screws for $125.  The second agreement:

            A)   Is not binding because it is oral.

            B)   Is not binding because X has only promised to perform a preexisting legal obligation.

            C)   Is not binding because it is an outputs contract.

            D)   Is binding.

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Law Assignment Help questions and Answers Part5

Resuming the law assignment help question series after part 4 in wordpress blog
http://assignmentdesign.wordpress.com/2011/08/08/law-assignment-help-questions-and-answers-part4/

1.       Bill Hotrod customizes hotrods for local gear heads.  His business entity is one of a duly established and managed LLC.  One of the services he performs is to install a breaking system that will allow you to lock the breaks on one side of the vehicle causing it to turn sharply in the direction of the locked breaks.  Sue Gofaster paid Bill to install break locks on her car.  While driving safely down the street the break locks malfunctioned and she is sent flying into the other lane and has a head on collision with another vehicle.

Which of the following is true:

A.        Would not make a difference, the out come is the same as in 1.

B.         Sue can sue Grease and Bill’s LLC.

C.        Sue can take all of the assets of the LLC but not Bill’s other personal

property assuming she wins her action.

D.                 B. and C. are correct.

E.                  A. and B. are correct.

2.       Doris locks Phil in a first floor room.  Phil sues Doris for false imprisonment. Which of the following is true?

            A)   Doris would escape liability if she let Phil out of the room after one hour.

            B)   According to some courts, Doris would escape liability if Phil slept through the entire period that the door was locked and thus was unaware that he was being detained.

            C)   Even if Phil could easily have escaped through an open window, Doris still is liable.

            D)   Doris would not be liable if Phil could have escaped by traveling two miles through a narrow, filthy, rat-infested sewer line that periodically floods with water.

3.       Store owners' “conditional privilege” defense against intentional tort claims brought by detained shoplifting suspects, recognized by most states, usually

            A)   requires only that the store owner acted with reasonable cause in detaining the suspect.

            B)   requires only that the store owner detains the suspect for a reasonable length of time.

            C)   extends only to false imprisonment claims.

            D)   requires that the store owner act with reasonable cause, in a reasonable manner, and detain the suspect for only a reasonable length of time.

4.       Which of the following might result in a “right of publicity” claim?

            A)   A character in a popular TV show holds up a picture of famed actor Brad Pitt during one episode.

            B)   A health food store uses a picture of Shaquille O'Neal,  a well-known athlete, in its billboard advertisement.

            C)   An auto maker uses a “soundalike” of Barbara Streisand, a well-known singer, to sing a short song in one of its TV commercials.

            D)   Both b and c.

5.       Which of the following is slander rather than libel?

            A)   A defamatory statue.

            B)   A defamatory TV broadcast.

            C)   A defamatory magazine article.

            D)   All of the above are libel rather than slander.

6.       Russ, a well-known television actor uses an online dating service to meet eligible women in the Los Angeles area.  The online dating service “guarantees confidentiality” of information gathered from subscribers such as their identity, telephone number, and address.  An unknown person creates a website in which Russ's membership in the dating service is revealed along with his telephone number and home address.  Under a 2002 federal court decision, which of the following claims might Russ be able to make against the online dating service?

            A)   Public disclosure of private facts.

            B)   Defamation.

            C)   Right of publicity.

            D)   None of the above.

7.       Which of the following would have to prove actual malice as a plaintiff in a defamation claim?

            A)   A newspaper article makes a false statement regarding former U.S. President Bill Clinton's extramarital affairs while he held office.

            B)   Popular movie actor Tom Cruise is subject of a magazine article in which a person interviewed falsely accuses him of having an extramarital affair during his marriage to movie actress Nicole Kidman.

            C)   IBM is falsely accused of issuing fraudulent profit statements to stockholders by a news reporter.

            D)   All of the above.

8.       Dave tells Dora that Phil, a financial advisor, has been stealing money from his clients.  Dora then repeats Dave's statement to Tom, telling Tom that the information comes from Dave. All these statements are oral, defamatory, and false. Phil sues Dave and Dora for defamation.  Which of the following is true?  Don't consider defenses and privileges.

            A)   Phil can recover against Dave and Dora without proving special damages.

            B)   Because Dora only repeated Dave's statement and identified Dave as its author, she can't be liable to Phil.

            C)   Because Dave only communicated his statement to Dora, and not to an appreciable number of people, he can't be liable to Phil.

            D)   Phil must prove special damages in order to recover against Dave and Dora.

    9.   Which of the following is conditionally privileged?

            A)   Statements made during legislative proceedings.

            B)   Statements made to protect the interests of others.

            C)   Statements made between husband and wife.

            D)   Statements made during judicial proceedings.

    10.   In defamation law's interaction with the First Amendment, a "public figure":

            A)   Includes ordinary people who voluntarily inject themselves into a matter of public controversy.

            B)   Is treated very differently from a "public official."

            C)   Only includes people who are celebrities.

            D)  Can recover in strict liability against a media defendant

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Law Assignment Help questions and Answers Part3

1. A thief stole Art's checkbook and forged Art's name as drawer of a check. The drawee paid the check in good faith and sent it to Art with the monthly statement on January 3, 2008. The thief forged other checks during February and March of 2008, which the drawee in good faith paid. All paid checks were sent to Art with monthly statements. On May 25, 2009 , Art discovered all of the forgeries and notified the drawee. For which check(s) is Art entitled to be reimbursed?
a. none of them
b. all of them
c. the first check oniy
d. the last check only

2. Consumers have the responsibility to examine periodic statements provided by their financial institutions;
accordingly, if a loss would not have occurred but for the failure of a consumer to report within _ of the
transmittal of the statement any unauthorized transfer, the loss is borne by the consumer.
a. fourteen (14) days
b, thirty (30) days
c. sixty (60) days
d. six (6) months

3. Funds transfers made by businesses are governed by ____________ regulations.
a. UCC
b. Federal Reserve
c. UCC and Federai Reserve
d. neither UCC nor Federal Reserve

4.Consumer protection statutes and regulations do not protect against:
a. deceptive advertising.
b. the consumer's own negligence.
c. unsolicited credit cards sent to creditworthy consumers.
d. unreasonable methods of debt collection bv debt collection agencies.


5.Truth in advertising legislation is fundamentally designed to:
a. give the consumer an accurate description of the product.
b. punish sellers who knowingly make false statements about the product offered for sale.
c. punish sellers who state a false opinion about tiie product.
d. give the consumer information about other similar products that are available.

6.When an enterprise has made false and deceptive statements in advertising, the FTC may require new
advertising to correct the former statement so that consumers are aware of the truth. This corrective
advertising required by the FTC is also called _ advertising.
a. retractive
b. redactive
c. retroactive
d. refractive

7.The _ lending market makes loans to consumers who have bankruptcies, no credit history,
low-to-moderate incomes, or a poor credit history.
a. subprime
b. subterranean
c. suboptimal
d. optimus prime

8. An unsolicited distribution of credit cards to persons who have not applied for them is:
a. allowed by most states.
b. voidable.
c. illegal.
d" authorized by nonuse.

9. The owner of a lost credit card is:
a. liable for all purchases made by its finder if the card was lost through negligence.
b. not liable for any purchases if the card was lost despite the exercise of reasonable care by
the cardholder.
c. liable for all purchases if the card originally had been sent to the cardholder without any
prior request and never was used by such holder.
d. not liable for more than $50 for the unauthorized use of the card.

10. If you allow another person to use your credit card but the person uses the card for a purpose other than the one you specified:
a. an unauthorized usage has occurred.
b. an authorized usage has occurred.
c. you will not be responsible for more than $50 of the amount charged"
d. both a. and c.

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Law Assignment Help questions and Answers Part2

1.         Which of the following is an equitable remedy?

            A) Arbitration

            B)   Money damages.

            C)   Mediation.

            D)   An injunction.

2.         Which of the following defeats a federal statute in case of a clash between them?

            A)   A state statute.

            B)   A state constitution.

            C)   An equitable principle.

            D)   None of the above.

3.         Which of the following is both civil and substantive?

            A)   A state's contract law.

            B)   A state murder statute.

            C)   A state's rules for the conduct of a civil trial.

            D)   A state's rules for appealing a civil judgment.

4.         The doctrine of stare decisis:

            A)   Says that courts should follow the plain meaning of statutes and not worry about anything else.

            B)   Says that courts should look at legislative history when interpreting statutes.

            C)   Says that common law rules, once established, can never change.

            D)   Says that, in common law cases, like cases should be decided alike.

5.         Westlake Online, an internet services provider, includes in its “clickwrap” contract a clause stating that California courts have “exclusive jurisdiction” over subscribers' disputes with Westlake Online.   This clause will most likely be:

            A)   Unenforceable because it was not the result of bargaining.

            B)   Enforceable if it is considered reasonable by a court.

            C)   Unenforceable against a subscriber in another state.

            D)   Enforceable if the subscriber does not file a motion to dismiss.

6.         Defending against a federal district court suit by P, D claims that P has sued him in the wrong federal district court.  D has raised a question of:

            A)   Long-arm jurisdiction.

            B)   Venue.

            C)   In personam jurisdiction.

            D)   Standing.

7.         Which of the following statements regarding commercial speech is true?

            A)   Commercial speech enjoys the same First Amendment protection as political expression.

            B)   Commercial speech is not protected if it misleads or seeks to promote illegal activity.

            C)   Receives intermediate protection if it is not misleading.

            D)   Both b and c.

8.         In order for an unconstitutional denial of due process to exist, there must be:

            A)   Government action

            B)   A deprivation of liberty or property

            C)   A deprivation of liberty and property

            D)   a and b

            E)   a and c

9.         The Nirvana State High School Athletic Association (NSHSAA) is a privately organized, not-for-profit entity which regulates interscholastic athletic competition among public and private high schools in the state.  Although no schools are required to join, nearly all public and many private schools have done so.  NSHSAA worked closely with the state board of education.  The NSHSAA enforced an association rule against a member school, which brought a Fourteenth Amendment claim against the NSHSAA. NSHSAA will most likely:

            A)   Be considered a government actor.

            B)   Not be considered a government actor because high school athletics is not exclusively a state function.

            C)   Not be considered a government actor unless a state regulation compels high school athletics.

            D)   Be considered a government actor only if it receives extensive funding from the state.

10.       In order for a state law to be preempted by federal law:

            A)   There must be a literal conflict between the state law and the federal law.

            B)   The federal law must specifically say that it preempts state law.

            C)   Both a and b.

            D)   Neither a nor b.

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