LAW 534 Lecture Notes - Lecture 2: Ex-Ante, Handrail, Absolute Liability
22 May 2018
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Lecture 2: Chapter 2
• Legislation says that companies must protect all employees, but does that cover
subcontract employees
o Court ruled independent contractors are treated as employees
• 3 main things for essay
o Thesis
o Research
o Relation to course
Introduction
• Chapter 2 can be roughly divided into two main sections:
1. Different ways of thinking about regulation:
a. Timing of how issue is addressed (ex ante vs. ex post)
b. Level of specificity of how regulation is worded (rules vs. principles)
2. Three different legal categories of offence in Canada (mens rea, strict liability and
absolute liability) and the implications this has on legal analyss and risk management
Ex Ante vs. Ex Post
• Ex Post regulation:
o Very common – statute sets some form of standard of conduct. If an individual
breaches the statute, then there is prosecution against the individual for
breaching the statute. In a sense, ex post regulations react after the potentially
or actual harmful conduct has occurred
• Ex Ante regulation:
o Attempts to address the anticipated harms proactively usually through some
form of permit or licensing system
• Hypothetical example in textbook:
o Regulation of content of movies (example: obscene material)
o Ex ante: censors screen movie before released to public
o Ex post: free to show movies but may be prosecuted after the fact if it turns out
to be obscene
• Note that a general area of law may have both ex post and ex ante system
o You need to get a driving license fist to drive (ex ante)
o You must obey rules of the road (example: red light means stop) (ex post)
• Advantages of ex ante
o Addresses issue in advance – thereby attempting to prevent harm proactively
o Can develop standards ahead of tome to promote stability of expectations
• Disadvantages of ex ante
o Cost and efficiency – it can be expensive to review everything ahead of time
o Not good for rapidly changing environments – hard to make a universal guideline
(example: economic outcomes)
• Suggested Approach
find more resources at oneclass.com
find more resources at oneclass.com
o Important to realize when authors are expressing their own opinion
o Example: tragic event involving voice over internet and 911 emergency call. This
should have been addressed ex ante rather than ex post
o The question is when should we use ex post and when should we use ex ante?
o The authors propose two guiding concepts but first it is important to understand
that the authors also rely on another way to categorize regulations based on
specificity in drafting
• Two categories of specificity:
1. Rules: Laws that have been drafted with a high degree of specificity. An example
might a regulation that states stairs in building must have a handrail made of specific
material and capable of withstanding a minimum threshold of force
2. Principles: laws which have been drafted in general terms and often focused on
outcomes rather than specific details. An example might be regulation that states
stairs in a building must contain a handrail capable of reasonably protecting
pedestrians from falling over
• Chart at 2-2.4 summarizes the views of the authors
• The two guiding principles advocated by authors:
1. Focusing on harm and human needs
o Uses Malol “pao’s ategoizatio of has as a ethod of lookig at issue
2. Multiple models
o The models are not mutually exclusive. You can have both ex post and ex ante
models addressing various aspects of an issue
• More comments on proper role of ex ante
o Human health and safety (not just life-threatening)
o Persons who may have difficulties or face systemic barriers enforcing their rights
ex post such as economically disadvantaged persons and, physical or mentally
challenged persons
• Rules vs. Principles in Ex Ante
o The key area of focus is whether the subject of regulation changes rapidly
o Telecommunications as example –
▪ want ex ante regulation to provide access to those with disabilities
▪ However, since telecommunications is a rapidly changing, principles is
probably better for this subject
▪ Principle based approach may be better suited for areas that are rapidly
changing
• Rules vs. principles within ex post
o A spectrum from rules to principles as described at 2-2.10 ranging from
▪ Legislation of detailed specific method
▪ Legislation of specific goals
▪ Legislation of general prohibition
▪ Common law remedies for harm
o Re Cartaway Resources Corp case as a good example of some of the issues with
rules based approach failing to catch certain types of conduct
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Lecture 2: chapter 2: legislation says that companies must protect all employees, but does that cover subcontract employees, court ruled independent contractors are treated as employees, 3 main things for essay, thesis, research, relation to course. Ex ante vs. ex post: ex post regulation, very common statute sets some form of standard of conduct. If an individual breaches the statute, then there is prosecution against the individual for breaching the statute. Important to realize when authors are expressing their own opinion: example: tragic event involving voice over internet and 911 emergency call. The building of the halfway house in canada: famous landmark case is r. v. sault ste. The impact of the charted on regulatory offences: recall what the charter is about: restrictions on the ability of government to pass laws or exercise power, re: motor vehicle act an important principle.
