Fact Pattern I - (15 marks)

Anderson owns a corner store in Kingston, Ontario. Now that corner stores have been allowed to sell beer and wine in Ontario, Anderson wants to promote his store's ability to sell these products. He covers his car with the logos of well-known beer brands and drives his car around Kingston. A few days later, Kingston City Council adopts a bylaw banning all alcohol advertising in the city. As Anderson is driving his car close to City Hall, the mayor comes running out of his office to confront him. Anderson has to swerve to avoid the mayor, and the car runs into a pedestrian on the sidewalk, who is gravely injured.

Keep these facts in mind when answering the following questions.

Question 1 (1 point)

You are advising Anderson. Anderson wants to challenge the City of Kingston's bylaw. Which of the following arguments could he potentially make?

Question 1 options:

a)	The bylaw is unconstitutional, since only the federal Parliament can regulate the sale of alcohol in Canada.

b)	Anderson can argue that the bylaw violates his s. 2(b) right to freedom of expression under the Charter.

c)	Bylaws are not real laws, so Anderson can ignore the bylaw.

d)	Anderson can argue that the bylaw violates his right to be presumed innocent under s. 11(d) of the Charter.

Question 2 (1 point)

Which of the following statements is true?

Question 2 options:

a)	Since Anderson's store is a private business, the Charter will not apply.

b)	The Charter applies only in the areas of housing and the provision of government services.

c)	Since the City exercises government powers, and its bylaw-making power is authorized by provincial law, it is subject to the Charter.

d)	Since the Charter applies only to federal legislation, it will not apply here.

Question 3 (1 point)

Anderson challenges the bylaw by claiming it infringes his s. 2(b) freedom of expression rights. Which of the following would be a valid argument for him to use?

Question 3 options:

a)	He should have been presumed innocent until proven guilty, in accordance with s. 11(d) of the Charter.

b)	The right to sell alcohol is protected by s. 16(1) of the Charter.

c)	City Council's bylaw violates the principle of federal paramountcy.

d)	Since his advertising does not constitute violence or the threat of violence, it is protected expression.

Question 4 (1 point)

Assume that Anderson can show that the new law infringes his s. 2(b) freedom of expression rights under the Charter. Which of the following is true?

Question 4 options:

a)	The new law is automatically invalid.

b)	The new law is invalid, unless the federal Parliament adopts it using the "notwithstanding clause."

c)	The new law may still be justified as a reasonable limit under s. 1 of the Charter.

d)	None of the above.

Question 5 (1 point)

If the City Council wishes to justify its law under s. 1 of the Charter, which of the following will it have to prove?

Question 5 options:

a)	That the law pursues a pressing and substantial objective.

b)	That the law is the only way to reduce drunkenness in Kingston's streets.

c)	That the law does not deprive Anderson of his rights contrary to the principles of fundamental justice.

d)	All of the above.

Question 6 (1 point)

If the City Council is able to justify the bylaw as a reasonable limit on Charter rights under s. 1, which of the following is the likely outcome?

Question 6 options:

a)	The provincial legislature must approve the bylaw for it to take effect.

b)	Anderson will have to comply with the bylaw.

c)	The law will be declared unconstitutional and struck down.

d)	None of the above.

Question 7 (1 point)

If the City Council fails to justify its bylaw as a reasonable limit under s. 1 of the Charter, which of the following is the likely outcome?

Question 7 options:

a)	The court will draft a new, constitutional bylaw, and submit it to City Council for approval.

b)	All city bylaws will be rendered inoperative until the City Council repeals the offending bylaw.

c)	The federal Parliament will adopt legislation dissolving Kingston City Council and ordering new municipal elections.

d)	None of the above.

Question 8 (1 point)

Suppose Anderson is arrested and charged with assault on the pedestrian. Which of the following might be a problem for the prosecution?

Question 8 options:

a)	The fact that Anderson did not touch the pedestrian directly.

b)	The fact that Anderson has no prior criminal record.

c)	The fact that Anderson does not have the requisite mens reahe did not intend to hit the pedestrian.

d)	All of the above.

Question 9 (1 point)

Suppose Anderson really sells his own home-brewed beer instead of the brands whose logos are plastered on his car. Which of the following statements is true?

Question 9 options:

a)	Anderson could be sued for divulging the beer makers' trade secrets.

b)	Anderson could be sued for trademark infringement.

c)	As long as Anderson has filed for trademark protection, the beer brands will not be able to prevent him from using their logos.

d)	The beer makers whose brand names and logos are being used could sue Anderson for copyright infringement.

Question 10 (1 point)

Suppose Anderson is also injured in the car accident. Which of the following might be true?

Question 10 options:

a)	Anderson's injuries were too remotehe would not succeed in a negligence claim.

b)	Anderson can sue the mayor for breach of contract.

c)	Anderson may sue the mayor for negligence and argue that the mayor's actions breached the standard of care and caused his injuries.

d)	Because Anderson was violating the advertising bylaw at the time of the accident, he has lost any ability to sue.

Question 11 (5 points)

Suppose you are the city lawyer charged with justifying the city's bylaw under s. 1 of the Charter. Which branch of the Oakes test will be the most difficult for you? Explain why, and give your best argument in favour of the law under that branch of the test.

Question 11 options:

Fact Pattern II - (20 marks)

Annalise owns a pastry shop in Kingston. Her friend Brad, a recent Commerce graduate, offers to help her promote her business by having her cater a social event he is hosting at a local gallery. Annalise is very much interested, but she is short on cash and is afraid she won't be able to pay for all the supplies she needs to cater the large party. Brad offers to give her a loan; he tells Annalise that if she doesn't break even, she won't have to pay him anything back, but if she makes a profit, then she will be expected to pay him back the loan with interest. Annalise agrees.

On the day of the party, Annalise arrives at the gallery and sees that it is filled with well-known and valuable art pieces. The small gallery is lit with candles placed on stands around the room. Soon, guests are milling about, enjoying her pastries. As Annalise is serving cake to one of the guests, however, she drops a piece on the floor. Another guest steps on the piece of cake and slips, knocking over a valuable statue, which knocks over a candle into a curtain. The entire gallery erupts into flames. Luckily, everyone manages to escape, but all of the artwork is destroyed. Annalise finds out that the artwork was valued at over $5,000,000. She tries to find Brad, but he is nowhere to be found.

Keep these facts in mind when answering the following questions.

Question 12 (1 point)

Annalise comes to you for advice. She is worried about having to pay for the destroyed artwork. If the artists sue Annalise in negligence, which of the following arguments might help Annalise defend herself?

Question 12 options:

a)	Annalise can argue that she didn't intend to set the fire.

b)	Annalise can argue that she acted as a reasonable caterer would.

c)	Annalise can argue that she didn't owe the guests a duty of care.

d)	Annalise can argue that the artists did not suffer any injury.

Question 13 (1 point)

If Annalise wants to argue that the damages are too remote to hold her liable in this case, what would she have to show?

Question 13 options:

a)	That the kind of damage caused was not reasonably foreseeable.

b)	That the value of the damage caused is beyond her ability to pay.

c)	That the degree of damage caused was not reasonably foreseeable.

d)	That the specific chain of events leading to the damage was not reasonably foreseeable.

Question 14 (1 point)

If Annalise is found liable for the damages, and since Annalise operates her bake shop as a sole proprietor, which of the following statements is true?

Question 14 options:

a)	If Annalise is unable to pay for the damages, only her bake shop equipment can be taken and sold to satisfy the debt.

b)	If Annalise is unable to pay for the damages, all her personal assets can be taken and sold to satisfy the debt.

c)	If Annalise is unable to pay for the damages, the court will reduce the damages accordingly.

d)	None of the above.

Question 15 (1 point)

Which of the following factors would be relevant to a court when determining whether the standard of care was breached?

Question 15 options:

a)	The likelihood that an accident would occur.

b)	Any steps taken by Annalise to minimize the risk of accidents.

c)	The seriousness of the injuries or damage that could be caused by an accident.

d)	All of the above.

Question 16 (1 point)

Which of the following statements is true?

Question 16 options:

a)	Because Annalise and Brad called their arrangement a loan, courts will find that they are not partners.

b)	Because Annalise and Brad's arrangement amounts to profit sharing, a court would likely find that they are partners.

c)	Because Annalise and Brad were friends, a court would find there was no contractual relationship between them.

d)	Because Annalise took Brad's money, she is responsible for all his subsequent actions.

Question 17 (1 point)

Annalise is upset as she wasn't aware that valuable artwork would be displayed in the gallery and that it would be lit by candles. Brad made both of those decisions. Brad also signed a contract with the artists to rent the artwork, in which he promised to pay them a large fee for displaying the artwork. The artists are now claiming this fee in addition to the damages in tort. If the artists want to sue Annalise in contract law, which of the following factors would be the most important in determining her liability?

Question 17 options:

a)	The fact that she hadn't known Brad for very long.

b)	The fact that she was in a partnership with Brad.

c)	The fact that she owes Brad money.

d)	The fact that she was unaware of the value of the displayed artwork.

Question 18 (1 point)

If Annalise and Brad are partners, which of the following statements is true?

Question 18 options:

a)	Annalise cannot recover anything from Brad.

b)	Annalise is responsible for Brad's contractual promises, since partners are agents of each other.

c)	Since Annalise never signed a contract with the artists, she will not be liable, as she is not privy to the contract.

d)	Annalise is responsible for any torts Brad has caused, but not for contractual promises.

Question 19 (1 point)

Could Annalise and Brad have formed a limited liability partnership (LLP)?

Question 19 options:

a)	Yes, because Brad may have studied accounting.

b)	Yes, because a limited liability partnership can be formed automatically, without the partners being aware of it.

c)	No, because only members of certain professions can form LLPs.

d)	No, because only corporations can form LLPs.

Question 20 (1 point)

Suppose one of the artists, whose displayed artwork was valued at $6,000, also agreed to receive a $500 fee for displaying the artwork. The artist sues Annalise in tort to recover compensation. What will be the amount of the damages awarded?

Question 20 options:

a)	$6,000the amount required to put the artist back in the position they were in before the accident occurred.

b)	$6,500the amount required to put the artist in the position they would have been in if the accident had not occurred and the contract had been fulfilled.

c)	$500the amount of profit the artist intended to make from the evening.

d)	None of the above.

Question 21 (1 point)

Suppose Annalise and Brad had decided to form a corporation. Which of the following is correct?

Question 21 options:

a)	Only one of them could be a shareholder, and the other a director of the corporation.

b)	Both of them could hold non-voting shares.

c)	Two persons cannot form a corporationat least ten people are needed.

d)	They could both be shareholders of the corporation.

Question 22 (1 point)

If Annalise had hired Brad as an employee, which of the following statements is correct?

Question 22 options:

a)	Their relationship would be regulated by the collective bargaining regime.

b)	Annalise would be responsible for Brad's actions taken in the course of his employment.

c)	Brad would be solely liable for all the damages caused in this scenario.

d)	None of the above.

Question 23 (1 point)

If Annalise had incorporated her business, which of the following would be true?

Question 23 options:

a)	Both Annalise and Brad could be shareholders and employees of the corporation.

b)	A corporation is not a person and cannot be an employer.

c)	If Annalise was a director of the corporation, then she could not hire any employees for the corporation.

d)	Brad could be an employee of the corporation, but not Annalise, since you cannot be both a shareholder and an employee of a corporation.

Question 24 (1 point)

If Annalise and Brad had formed a corporation in which Brad held preferred (non-voting) shares and Annalise held common shares, which of the following is true?

Question 24 options:

a)	Brad could demand payment of a dividend at any time, provided he gave Annalise sufficient notice.

b)	If the corporation were dissolved, Brad would get a share of any remaining assets ahead of Annalise.

c)	Brad would control the corporation.

d)	Brad could elect himself as a director of the corporation.

Question 25 (1 point)

If Annalise and Brad had formed a corporation in which Brad held preferred (non-voting) shares and Annalise was the sole director, which of the following would be a disadvantage for Brad?

Question 25 options:

a)	Brad would not get any say on corporate decisions.

b)	Brad would only receive a dividend when Annalise decided to pay one.

c)	Brad would be unlikely to find a buyer for his shares.

d)	All of the above.

Question 26 (1 point)

If Annalise and Brad want to incorporate the business, which of the following statements is correct?

Question 26 options:

a)	They can incorporate both federally and provincially at the same time.

b)	They can never change the business their corporation is engaged in.

c)	If they want to give their corporation a specific name, they will have to pay for a name search to ensure that name is not being used.

d)	They will have to wait five years to receive their articles of incorporation.

Question 27 (5 points)

Suppose the above scenario has not happened. Annalise comes to you asking for your advice on two options for her business: (1) continue as a sole proprietorship with Brad as an employee; or (2) form a partnership with Brad. Give an advantage (other than low cost and ease of setup) and a disadvantage for each option. Which do you think is the better choice?

Question 27 options:

Fact Pattern III - (20 marks)

Xavier owns a coffee shop in Kingston called "The Last Cup." He and his friend Yolande have an agreement to sell her grandma's famous cookies at his shop. Yolande is very proud of her cookies, and she keeps the recipe as a closely guarded secret. One day, as she comes into the shop as usual to receive her share of the proceeds from the sale of the cookies that week, she walks into the back office of the shop, but Xavier is not there. She decides to wait for him. As she waits, she notices that one of the floorboards appears to be loose. She reaches down to move it and discovers several gold bars hidden beneath the floor. She takes the gold bars and leaves.

Meanwhile, Xavier has been working in his kitchen, analyzing Yolande's cookies to discover their composition. He manages to figure out the secret ingredients and bakes a batch of cookies that are exactly the same as Yolande's. When Yolande learns of this, she is furious. She decides to open her own rival coffee shop, which she names "The Second-Last Cup."

That is not the end of Xavier's troubles: Xavier's landlord, Zane, has never much liked Xavier, and Xavier suspects this is because he is openly gay. As the time comes to renew the lease, Zane refuses to rent to Xavier again. When Xavier asks why, since he has always paid the rent regularly, Zane says, "I'd rather rent to someone who shares my values, if you know what I mean."

Keep these facts in mind when answering the following questions.

Question 28 (1 point)

Regarding the secret recipe for Yolande's grandma's cookies, which of the following is true?

Question 28 options:

a)	Because Xavier was able to figure out the recipe, and it was not divulged, Yolande cannot claim her trade secret was infringed.

b)	Yolande can have no rights in the recipe as it counts as traditional knowledge.

c)	Yolande's copyright in the recipe was infringed.

d)	Yolande can sue Xavier for infringing her trade secret.

Question 29 (1 point)

If Xavier wants to make a claim against Yolande for opening the shop, which area of intellectual property would it involve?

Question 29 options:

a)	Trademark.

b)	Copyright.

c)	Trade secret.

d)	None of the above.

Question 30 (1 point)

If Xavier has not registered "The Last Cup" as a trademark, which of the following is true?

Question 30 options:

a)	Xavier will have to sue Yolande in the tort of passing off and will have to prove that the name is recognized in association with his shop.

b)	Xavier can have Yolande charged under the Criminal Code.

c)	Xavier cannot trademark the name of his shop, as it is too short to have literary merit.

d)	There is nothing Xavier can do to prevent Yolande from using a similar name.

Question 31 (1 point)

In a lawsuit for trademark infringement, which of the following facts would be the most significant?

Question 31 options:

a)	The fact that three of four words in Yolande's shop's name are the same as in Xavier's.

b)	The fact that Yolande had the requisite mens rea to commit the crime.

c)	The possibility that customers might be confused by the similarity in the shops' names.

d)	The possibility that Yolande copied the idea of the name from Xavier.

Question 32 (1 point)

Suppose that Yolande decides to publish the cookie recipe, along with several other recipes of her grandmother's, in a new cookbook with several pictures and stories from her grandmother. Which of the following is correct?

Question 32 options:

a)	Yolande will be able to prevent anyone from using her recipes, since they are now protected by copyright.

b)	Xavier will be allowed to copy and sell the recipe book, since the recipes are no longer secret.

c)	Because the book is mostly made up of recipes, it cannot receive copyright protection.

d)	Yolande will have copyright in the book, but she cannot prevent Xavier from using the recipes.

Question 33 (1 point)

With regard to the gold bars, which of the following might be a problem for Yolande's claim to possession of the gold bars?

Question 33 options:

a)	The fact that she may have been trespassing in the back area of the shop.

b)	The fact that she made no effort to find the true owner of the gold bars.

c)	The fact that the gold bars were found under the floorboards.

d)	All of the above.

Question 34 (1 point)

Assume that Xavier had previously told Yolande that she could come into the back of the shop at any time and wait for him there if he was out. Which of the following statements is true?

Question 34 options:

a)	Unless Xavier keeps the door to the area locked at all times, he cannot claim that he shows manifest intent to control access to it.

b)	By inviting her into the back area of the shop, Xavier gave up any intent to control access to that area.

c)	If Xavier only admits people he specifically invites, such as Yolande, to the back area of the shop, then this shows his manifest intent to control access to that area.

d)	Yolande is still trespassing, even if she is invited to be there.

Question 35 (1 point)

Imagine that Yolande had been an employee of Xavier's. Which of the following statements is correct?

Question 35 options:

a)	Yolande's claim to the gold bars would be better than the true owner's.

b)	Yolande, as an employee, will take on behalf of her employer, Xavier, so Xavier will have the better claim.

c)	Xavier's claim will be subordinate to Yolande's, as he is her agent.

d)	Yolande, as the finder, would have the best claim to the gold bars.

Question 36 (1 point)

Which of the following facts will be relevant in determining the relative claims of Yolande, Xavier, and Zane to the gold bars?

Question 36 options:

a)	The fact that the gold bars were found under the floorboards.

b)	The fact that Yolande made no effort to find the true owner.

c)	The fact that the true owner cannot be found.

d)	All of the above.

Question 37 (1 point)

Assuming that Xavier has shown a manifest intent to control access to the back office of the shop, which is the most likely order of claims, from best to worst?

Question 37 options:

a)	True Owner, Xavier, Yolande, Zane.

b)	True Owner, Zane, Xavier, Yolande.

c)	True Owner, Yolande, Xavier, Zane.

d)	Xavier, Zane, True Owner, Yolande.

Question 38 (1 point)

Xavier wants to claim that he is being discriminated against on the basis of sexual orientation. Which of the following statements is true?

Question 38 options:

a)	While the Charter will not apply here, the Ontario Human Rights Code prevents discrimination in this situation.

b)	Xavier can argue that his Charter rights have been infringed, but the landlord can justify this under s. 1.

c)	Xavier is out of lucksince the landlord is a private individual, the Charter will not apply.

d)	Xavier can argue that his rights under the Charter have been infringed by the landlord.

Question 39 (1 point)

In which protected social area is Xavier being discriminated against?

Question 39 options:

a)	Employment.

b)	Contracts.

c)	Accommodation (housing).

d)	Membership in unions, trade or professional associations.

Question 40 (1 point)

Which of the following arguments could Zane make to justify his decision not to rent to Xavier?

Question 40 options:

a)	Sharing his values is a bona fide occupational requirement of a tenant.

b)	Accommodating Xavier would cause him undue hardship.

c)	It is perfectly fine to discriminate on the basis of sexual orientation when entering into a commercial lease.

d)	None of the above.

Question 41 (1 point)

If Yolande and Xavier shared in the profits of the sale of the cookies, they may have been partners. In that case, which of the following statements is true?

Question 41 options:

a)	They would have to share all profits from the sale of the cookies equally.

b)	They would have to sign a formal partnership agreement in order to form a partnership.

c)	They would have to share profits, but they could agree to share them in any proportion they choose.

d)	None of the above.

Question 42 (1 point)

Which of the following pieces of legislation would be relevant to the scenario above?

Question 42 options:

a)	The Employment Standards Act.

b)	The Patent Act.

c)	The Criminal Code.

d)	The Human Rights Code.

Question 43 (5 points)

Suppose that before this entire scenario occurred, Xavier, Yolande, and Zane had come to you for advice. Xavier and Yolande had decided to incorporate their business together, and Zane is interested in investing in it. Advise them on the following questions: (1) Who should be the director(s) of the corporation? (2) Who should be the shareholder(s) of the corporation? (3) What types of shares should each shareholder own? (4) List possible issues.

Question 43 options:

Section B - Essay Question

Choose ONE of the following options. Your answer should be written in full sentences, following an essay format including an introduction, thesis/outline of arguments, and conclusion. You should support your position using reference to course materials.

This section is worth 45 marks.

Question 44 (45 points)

Choose ONE of the following options.

1. Choose a legal topic that has been in the news lately. Describe, with reference to the course materials, at least two (2) ways in which you have learned in the course has helped you better understand the legal issues involved in your topic.

- OR -

1. An emerging trend in the law is the granting of legal personality to natural features such as rivers, mountains, lakes, etc. Like corporations, natural features that are granted legal personality are treated as legal persons, with corresponding rights and obligations. Using what you have learned in the course, explain how this development might impact two (2) areas of law discussed in the course. Be sure to reference course materials as appropriate.