MATH 223 Lecture Notes - Lecture 8: Ultra Vires, Primary And Secondary Legislation, Royal Assent
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21 Oct 2020
School
Department
Course
Professor
Division of powers
• Constitution divides legislative authority
o Federal government: e.g. crime, bankruptcy, copy right (section 91)
o Provincial government: e.g. property, civil rights (section 92)
• Federal government holds residual power
• Doctrine of federal paramountcy determines which law trumps when federal and provincial statues conflict
o When a government legislative outside its authority, law is ultra vires and has no force or effect (s.52)
Charter of rights and freedom
• Part of the Constitution that protects basic rights and freedoms
Topic
Section
Example
Guarantee
1
‘Guarantees the rights and freedom ..subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and
democratic society’
Fundamental freedom
2
Freedom of religion, expression, peaceful assembly, and association
Democratic rights
3-5
Right to vote in House of Commons and Legislative Assembly elections
Mobility rights
6
Right to leave and enter Canada; right to live and work in any province
Legal rights
7-14
‘right to life, liberty and security of the person,’ ‘right to be secure
against unreasonable search or seizure’
Equality rights
15
Right to be free from discrimination
Official languages
16-22
‘English and French are the official languages of Canada’
Minority language education
23
Limited right to have children educated in either official languages
Enforcement
24
A court may respond to a charter violation with any ‘remedy considers
appropriate and just in the circumstances’
General
25-31
The charter shall be interpreted for the ‘preservation and enhancement
of the multicultural heritage of Canadians’
Application
32-33
The Charter applies to federal and provincial governments
Legislation
• Laws created by Parliament or Legislature
o Two categories: statues and subordinate legislation
• Subordinate legislation: law that is created by someone on behalf of parliament or the legislature, is
important to municipalities
• By-law: type of subordinate legislation that is created by a municipality (town or city)
• Statues: legislative process
o Introduced as 'bill'
o Majority support through series of 'readings'
o Sometimes public consultation follows
o Finalized by 'royal assent'
Common law and equity
• Historical developments
o Phase II: law and equity
• Courts of law supplemented by courts of equity (or chancery)
• Separate courts, judges, and rules
o Phase III: fusion
• Law and equity combined into single court
• Ongoing rationalization of legal and equitable rules
• In the event of an inconsistency, the equitable rule apply
o Equity recognizes a trust, which exists when a settlor transfers property to a trustee to hold on behalf of a
beneficiary
• Administrative tribunal: a body, somewhere between a government and a court, that resolves issues and
disputes that arise in administrative law, Tribunals that affect people’ rights are quasi-judicial
Tort
• The private wrong; a failure to fulfill a private obligation imposed by law
• Torteasor: person who commits a tort
• Tort law includes almost every sort of private law wrong outside of breach of contract
• Social purpose: it discourages people from committing private wrongs by requiring them to compensate and
restore the wronged party
Types
• Intentional
o Doesn't necessary mean to intent to harm someone with resulting in harm
o Occurs when a person intentionally acts in a defined wrongful way (intent to harm, act)
o Assault (apprehension of being reception of violence); occurs when the defendant intentionally causes the
plaintiff to reasonably believe that offensive bodily contact is imminent (immediate)
• Element
▪ Reasonable: even if defendant lacked ability (e.g. unloaded gun)
▪ Belief: actual bodily contract irrelevant
▪ Imminent: distant threat insufficient (e.g. kick you next week)
▪ Offensive: even if not harmful or frightening
o Battery - consists of offensive bodily contact
• i.e. blood transfusion against patient’s wish, security guard
o False imprisonment - occurs when a person is confined within a fixed area without justification
• Liability will be imposed if, without a jail, the defendant physically detains the plaintiff
• Requires proof that ‘imprison’ was ‘false’ or unjustified
o Malicious prosecution - occurs when the defendant improperly causes the plaintiff to be prosecuted
• Element:
▪ Must prove defendant started proceedings
▪ Out of malice or for some improper purpose
▪ Plaintiff was eventually found not guilty of crime (p was eventually acquitted out of
alleged crime)
o Interference with chattel - occurs when the defendant interferes with chattels that the plaintiff posses
• Trespass to chattel – when the defendant interferes with the plaintiff’s possession
▪ Remedy: compensation for loss
• Conversion - occurs when the defendant interferes with the plaintiff's chattel in a way that is
serious enough to justify a forced sale (not stolen money) to exercise permanent ownership
▪ i.e. defendant sells, buys, takes, detains, uses or destroys plaintiff’s property
▪ remedy: defendant is required to buy the item by paying the market value that the
chattel had at the time at the tort
• Detinue - occurs when the defendant fails to return goods that the plaintiff has the right to
possess, conspiracy, intimidation, interference with contractual relation, unlawful interference
with economic relations, deceit
▪ Remedy: compensation for loss or return of chattel
• Intimidation – when the p suffers a loss because the d successfully threatened to commit an
unlawful act against either the p or the 3rd party
• Conspiracy, interference with contractual relation, unlawful interference with economic
relations, deceit
o Trespass to land (interference of enjoyment of land)
• Elements of test
▪ Intentional act
▪ Causing person or object
▪ To interfere with land
• Remedies
▪ Damages: compensatory, nominal, or punitive
▪ Injunction: order by court
• Preventing ongoing trespass
• Requirement to remove trespassing structure
▪ Removal of trespassers
• Arrest of trespassers
• Use of reasonable force in arrest
General approach to legal analysis
1. What is the legal issue?
• What kind of tort?
• i.e. trespass: D. physically goes on, over, or under; builds/ grows/ puts something on, over, or under;
takes something from on, over, or under another person's property
2. What is the legal test?
• What are the elements?
• Did D intend to do the act that used the land?
• Defenses apply?
Complete:
▪ Consent
▪ Legal authority
▪ Self defence of a third party
Partial:
▪ Provoke
▪ Contributory negligence
3. Do my facts meet the legal test?
• Negligence (unintentional)
o Occurs when a person acts carelessly
o Occupiers' liability - requires an occupier of premises to protect visitors from harm
o Nuisance - occurs when the defendant unreasonably interferes with the plaintiff's use and enjoyment of
their own land
• Defence: statutory authority - meaning the defendant caused a nuisance while acting under legislation
(inevitable result)
• Defendant is not relieved of liability merely because the nuisance already existed when the plaintiff
arrived in the neighborhood
• Remedy: compensatory and injunction
o Negligence, professional negligence, product liability (i.e. car recalls)
o Vicarious liability
• Employer is responsible for a wrongful act done by an employee when it is done in the course of
employment
• Company will be held liable even though they did not do anything tortious
▪ Employee is directly liable for his own tort
▪ Employer may also be directly liable if it committed a separate and independent tort - i.e.
careless training
• Employers maybe vicariously liable for employee's tort
• Employer vicariously liable for:
▪ Acts the company authorized an employee to do
▪ A tortious act closely connected to employment relationship
• Employer no vicariously liable if:
▪ Employer is not vicariously liable for independent contractors (non-employee)
▪ Employee tort occurred completely outside the employment relationship
General approach
1. What is the legal issue?
i. Is co. vicariously liable?
2. What is the legal test?
i. Is this an employee?
ii. If so, did the co. authorize the employee to do the tortious act
iii. Did the co. authorize the employee to do any other closely connected act?
3. Do my facts meet the legal test?
• Strict liability
o Liability without intention or negligence