Suing a neighbor for mischief offense

(a) Your neighbour’s dog has been driving you crazy with its barking – and after a heated discussion with your neighbour, your neighbour throws the dog’s food dish at you. The dish hits you, then bounces off and breaks one of your home’s small windows. You want to sue your neighbour. In which court would you sue? Assuming the case made it all the way to the Supreme Court of Canada, name the courts your case would be heard in, noting any obstacles you would face inproceeding through to the Supreme Court of Canada.

As per the Canadian legal system, the neighbour is liable to mischief offence. There exist various forms of mischief as explained by the Canadian criminal code. However, the most popular form of mischief offence is when an individual damages or destroys property, makes property useless or dangerous, ineffective or in operative among others. There should be proof that the accused actions made the property useless or led to the impairment of the property. Examples of mischief include among others; vandalism, damaging public property and damaging private property (Patrick e tal., 2009).   

Mischief, if one is found guilty can be Avery serious offence which may result into ten year jail or fines basing on the nature of damage caused. In this case, it is clear that my neighbour destroyed one  of  my house small windows which in its very nature tantamount to mischief according to the Canadian legal system (Patrick e tal.,2009).

  In this case, the courts of law have to determine the nature of sentence to be given to my neighbour basing on the nature of mischief committed, the current misunderstanding a rising from the barking of the dog among others. It is important to note that disputes involving two persons as per the Canadian legal system are categorized as civil offences and thus handled by civil courts. Given that the nature of the offence committed is not very grave, the matter can first be handled by the provincial courts of Canada (Richard e tal.,2006).

 If the matter is not well addressed by the provincial courts,  it can be forwarded to superior courts.  The last court that can offer justice after the mentioned courts have failed is the Supreme Court. The supreme court of Canada is comprised of 9 honourable judges headed by the Canadian chief justice. Appellate courts decisions are heard by the Supreme Court. Therefore,  it can generally be concluded that in case the above case goes up to the supreme court it will first be heard by the provincial and superior courts whose judgment may pave way to appeal to the supreme court to get a final verdict and interpretation of offences which results into mischief and how they are punished as per the current laws and legislations (Richard and  Mann, 2013).

Type of action for financial and property damage claim

(b) You want to claim financially for the injury you suffered, as well as for the cost of cleaning up the glass and repairing the window. While you were not hurt badly, nor did the window cost much, you want to bring an action to make sure your neighbour pays for what occurred. Discuss the type of action you would bring, and which court would be the best for your action, stating at least three reasons for your choice of venue.

Any deliberate property destruction amount to mischief as per the Canadian legal system. The amount of property and injury caused by the incident is one of the determinants of the likely penalty to be imposed on the offender. Where property is less than $5,000, the accused will be criminalized of an offence which is indictable and thus imprisoned for a maximum of 2years. On the other hand where the destroyed property is above 5000 dollars, it may results into an imprisonment of ten years. Further, mischief is an indictable offence and results into imprisonment for life in cases where the offence imposes a real on life.

 In this case it is clear the actions of the neighbours caused property destruction and threatened life which is a very serious offence (Robert, 2010). The issue to determine whether the injury caused or property damaged was grave is for court. But at the moment it is clear property and injury was caused which is the violation of human rights law, international law, the constitution together with other existing laws and statues. It is important to note that the fundamental rights and freedoms of individuals are inherent and not granted by the state. No one has right to cause damage or threaten the life of the other person (Robert, 2010).

In this case life was threatened and property destroyed. Therefore given that the overall damages caused by neighbour in monitory terms may exceed $50,000 if the injury caused and property destroyed are put into consideration, it will be critically relevant if the matter is presented to the Court of Queen’s Bench or any other higher court. The matter will be presented to Court of Queen’s Bench to ensure that all the damages caused as a result of the offence are compensated,

 Secondly, the offence committed is grave in nature and life threatening and thus cannot be tried by a lower court. Lastly, in case the justice is not effectively provided in this court it will be easier to go to a higher court which is the court of appeal with limited time wasted (Hogg, 2007).

High-profile cases involving criminal and civil charges

As a part of your answer, briefly explain the differences between civil and criminal proceedings and relate this answer to the issue above.

Criminal proceedings are handled by crown prosecutors. In other words it is the crown prosecutor who decides whether to sue or impose a charge against some body or not. In other words, criminal proceedings are cases raised by Government.  Also criminal proceedings involve imprisonment on the side of the accused. While civil proceedings are undertaken by a private person against an individual who caused financial, emotional or physical loss to another person and may involve outside court settlements. For instance the above mentioned case has elements of both civil and criminal offences one given that its involving a private person suing against the other for the harm caused and at the same time it may result into incarceration of the accused which is popular under criminal offences

(c) There have been examples of high profile cases, in Canada and in the US, where both criminal and civil charges were laid or possible. Discuss one such case and explain how this relates to the issue above.

It is important to note that crime that results into both private and public injury may be considered as both civil and criminal offences. The most profile case that can support this assertion is that of American football player named O.J. Simpson. Simpson in the year 1995 was relieved or acquitted of murder charges in the year 1995. However, just after two years a civil suit convicted him of liability of their murder. Therefore, in as for the above case is concerned some of the offences committed are criminal and other civil (Smits,2012).

(1) (a) You are a licensed real estate representative trying to sell your own condominium in downtown Vancouver. Recently, a rehabilitation centre specializing in drug addictions opened up in your neighborhood. When showing your condo to potential buyers you intentionally provide false information regarding the rehabilitation centre to encourage a sale. In addition, you did not disclose the fact that you are a licensed real estate representative to potential buyers and knowingly lied about theage of the condo, stating it was significantly newer than its actual age. Describe the various disciplinary consequences you could potentially face.

As per the Canadian restate services act of 2004, a number of legal and harsh measures may be imposed on any company or representative that provides false information.

Disciplinary consequences for lying about property details

 In this case it is clear the above actions are in line with section 35   (1) of the act that explains professional misconduct of an estate licensed agency. By providing false information, it is clear that a misleading statement was aired to the public which contradicts the sections of this act (Christian and Peter, 2011). Further, the above actions are a threat to the overall prosperity of the real estate industry given that it is based on extreme honesty and integrity. Therefore the above actions if brought to notice may result into among others reprimanding the license , imposition of particular conditions or restriction on the license , cancellation of the license, imposition of a penalty equivalent between  $250 000-$500 000. Therefore the above actions are heinous and  costly to real estate company being represented given that they are not in line with the laws that given the operations of the real estate industry in Canada (Margaret,2010).

Discuss what you think is her best claim under tort law and provide your reasons for your argument.

Tort law is concerned with an entity or individuals wrong full deeds or actions that results into loss of property, injury, reputation and thus bringing about an entitlement to compensation to the injured party (Margaret,2010). As per  the law of Torts, punitive damages, pain and suffering, medical expenses , loss of earning capacity and finally reimbursement for property damage and loss can be awarded by court was civil wrongs.

In this case it clear that neighbour has suffered from the tall privacy built screen. However, the action the main rationale for building the screen was not to harm but rather to protect individual privacy. Therefore in this case intentional torts don’t apply. However, the neighbour may rely on negligent torts to bring about a case and demand for compensation. This is due to the fact, there was no thorough of the negative impact of the tall screen on the numbers (Calvin e t al.,2009)

Discuss the issues you will face in selling your condominium and whether you have the right to do it or not

Under joint tenancy, more than one person owns the real estate. In other words jointly owned bank accounts can be accessed by each joint tenant. In the business of real estate, if one tenant is interested in selling, he only sales his interest but not the entire estate. In other words by selling his shares his transfers his portion of ownership to another person who becomes a joint owners with the remaining ones. Now in this case it is clear the real estate cannot be transferred into the hands of one person given that it’s jointly owned. The only alternative that is possible is selling the portion owned (Calvin e t al.,2009)

Tort law and complaints about privacy screen

(d)Assume that you have accepted an offer for the purchase of your condominium. The screen was not mentioned and you have assumed that you will be taking it with you when you move. Discuss the relevant criteria the courts would consider in deciding whether this screen belongs to the new owner, or whether it is yours. How might your answer differ if this item was specified in the contract of purchase and sale?

Any statement reflecting willingness to engage in any form of contract is defined as an offer. In other words an offer results into the development of abiding contract between the two parties once it is accepted. Acceptance is effectively term as an assent that is conditional in nature and at the same time communicated to the offer or by the offeree (Gerhard, 2006). A proper agreement is supposed to be attained through fairness and clear guidelines without any form of pressure. There should always be unconditional offer acceptance.

In this case, given that the screen was not part of the agreement it can  be taken away legally.  However, if it was specified within the contract of sale and purchase, it would be different in a sense that the owner by selling a way the property and indicating in the agreement he lost being in control and thus is not entitled to any thing on the estate since he transferred everything into the ownership of another party (Richard e tal.,2006).

Choose a single issue of interest (e.g., negligent misrepresentation, trespass, breach of warranty, private nuisance, etc.) and research reported decisions related to this issue. Using the case brief format set out in Chapter 1 of the course manual, prepare case briefs for three different reported decisions. Discuss the state of law on this issue based on these decisions and how the principle of stare decisisapplies to these decisions (i.e., how this was or was not reflected in the decisions you briefed).

R v Asante-Mensah

Case facts

Daniel Asante-Mensah operated with authorization of property tress pass act

Passengers were always collected from various localities

Asentre-mensah escaped after the inspector attempted to block him

Issues arising

Whether there was authorization to use reasonable force by the inspector to enforce arrest

Verdict

The Supreme Court relied on R. v. Whitfield and stated that Asante mensah had been properly arrested by inspector (Patrick and Richard, 2009).

Mitchell v Canada

Case facts

There was refusal to pay duty by Michel in his attempts to bring goods back cross the US Boarder

Goods were as friendship gift to the first nation

Issues arising

Are aboriginal rights inconsistent with Canadian Sovereignty?

When defining aboriginal rights existence, how is evidence handled

Court decision

The appeal was considered or allowed

Reasoning

Court relied in past precedence and rulings such as the Brown v. B. & F. Theatres Ltd, together with the applications of evidence rules in a more flexible manner for the aboriginals. Orals histories were also relied on (Richard, 2013).

Supreme Court of Canada

Purdom v. Robinson, (1899) 30 S.C.R. 64

Facts

There was use of the beach for bath and boating

Longer user had acquired a prospective right

Issue arising (Robert, 2010).

Whether the grantee can use a right of way provided as incidental easement to particular property

Judgment

Basing on In Skull v. Glenister and other previous decided cases, the justices dismissed the appeal with costs 

References

Richard, W. Bauman; Tsvi, Kahana .(2006). The Least Examined Branch: The Role of Legislatures in the Constitutional State. Cambridge University Press. p. 159. ISBN 978-1-139-46040-8.

Patrick, N. Malcolmson; Richard, Myers. (2009). The Canadian Regime: An Introduction to Parliamentary Government in Canada. University of Toronto Press. p. 149. ISBN 978-1-4426-0047-8.

Richard,  A. Mann. (2013). Business Law and the Regulation of Business. Cengage Learning. p. 7. ISBN 978-1-133-58757-6.

Robert, A, B. (2010). Canada In Crisis…: An Agenda to Unify the Nation. Trafford Publishing. p. 26. ISBN 978-1-4269-8062-6.

Hogg, P, W. (2007). Constitutional Law of Canada (5th ed.). Toronto: Carswell. pp. 8–9 — 8–11. ISBN 9780779813377.

1. M. Smits. (2012). Elgar Encyclopedia of Comparative Law. Edward Elgar Publishing. p. 132. ISBN 978-1-78100-610-8.

Christian, L; Peter H. R. (2011). Essential Readings in Canadian Constitutional Politics. University of Toronto Press. p. 477. ISBN 978-1-4426-0368-4.

Margaret, A, W. (2010). Genealogy and the Law in Canada. Dundurn. ISBN 978-1-77070-585-2.

Calvin,  S. Goldman and John D. Bodrug, Editors. (2009). Competition Law of Canada. Juris Publishing, Inc. ISBN 978-1-57823-096-9.

Gerhard, R. (2006). Encyclopedia of World Constitutions. Infobase Publishing. p. 169. ISBN 978-0-8160-6078-8.

Richard, W. Bauman; Tsvi, Kahana. (2006). The Least Examined Branch: The Role of Legislatures in the Constitutional State. Cambridge University Press. p. 159. ISBN 978-1-139-46040-8.

Patrick N. M; Richard. (2009). The Canadian Regime: An Introduction to Parliamentary Government in Canada. University of Toronto Press. p. 149. ISBN 978-1-4426-0047-8.

Richard ,A.,M.(2013). Business Law and the Regulation of Business. Cengage Learning. p. 7. ISBN 978-1-133-58757-6.

Robert, A, B. (2010). Canada In Crisis. An Agenda to Unify the Nation. Trafford Publishing. p. 26. ISBN 978-1-4269-8062-6.