Foundations of Law
September 5, 2013
Briefing a Case
It is important that you read each case a few times, to grasp the subtleties of the case.
Ask yourself, why is this case here in the textbook? What lesson does this case teach me?
Also ask yourself why did this case arise in the first place? Why couldn’t the parties have
resolved their differences, and what set of events led them to end up in court? Keep these
questions in the back of your mind.
Be ready to have the following elements of each case ready:
1. The name of the case, the parties, the name of the court, and date of the case.
2. The issue or question presented. This may or may not be stated in the case.
3. The legally operative facts. These are the facts that the case hinged on. If the car
was blue, and the color of the car was irrelevant to the outcome, then do not
mention the color of the car, for example. By focusing on only on the legally
operative facts, you will sharpen your eye for the analogies and distinctions
between different cases. Ask yourself when writing down the facts, would the
case have changed had this fact not been there?
4. The outcome or judgment: who won?
5. The holding. For example: “The court held that there was a contract when [set of
facts],” OR “The court upheld grant of summary judgment for defendant when
[set of facts].” Another way to do this is to answer the question presented and
state the facts that led to this outcome. The holding can be broad or narrow, and it
depends on what your view of case law is (or will be).
6. The procedural posture: For some classes, such as tort law, this is extremely
important. Nonetheless, it is important for all areas of law, and you should know
the procedural history of the case. Is this an appeal from a full trial below where
the defendant won? Is this an appeal from the grant of summary judgment, or the
grant of a motion to strike? We will discuss in class how to read the facts and the
holding in light of the procedural posture.
Readings – TWEN
Office hours by appointment
• Email, telephone, catch after class, in the hall, etc.
1. Legal reasoning
DO THE READINGS
Grading • 100% open book final exam
• Participation can affect marks
• Intro to Legal Reasoning – Read for 27 pages
• Two cases – read over well
• Legal dictionary – Westlaw (Black’s Law Dictionary)
• Transactional: Contracts (drafted by?)
• Regulation of property (drafted by?)
• Who can regulate and what can regulator do? (Constitutional law)
• What can we do and not to each other (criminal law)
• What can we do and not to each other (tort law)
• Insurance, immigration, sales, corporations, family
• Others:Administrative law (ABCs – agencies, boards, and commissions)
Where Does Law Come From?
o Two (or more) sides disagree about something.
• Facts – what happened? (First)
• Law – now what? (Second)
• Lawyers get involved (or not)
• Lawsuit filed
• Discovery + disclosure • Pre-trial conferences
• Mediation (or arbitration)
• Long, drawn out process
Facts (as found by finder of fact)
+Applied Verdict or judgment (at trial)
Law as found by trial judge
Appeal examines trial judgment
Appeal on grounds of appeal
Trial judgment (Law applied to findings of fact)
Appeal examines Findings of Fact Application of Law Outcome onAppeal
trial judgment - Trial finder of fact- No deference - Uphold (appeal
receives deference (exceptions) dismissed)
- Reverse (appeal
Only those put into appeal at play
Legal and factual issues
• Trial courts where facts are created, appellate courts are where law is created
• Case ofAv B
• Judgment authored by court with majority and dissent OR unanimous.
o Judgment – decision of the court (Canada)
o Appellate usually 3 judges, SCC usually 9
o Majority wins the case
o Dissent sometimes articulates another way of looking at the case –
disagrees with the majority. The dissent, a lot of times, will explain what
happened in the case.Alot of dissents eventually become the majority. Usually dissent much clearer and better written decision
o Concurrence is when the judge agrees with the outcome but has his or
own take on the matter.
• Sometimes (most), the Justices sign their names, and sometimes (few), it is signed
Per Curiam (By the Court)
• Case becomes precedent with the facts as stated in the case only relevant facts for
• Law may be changed, affirmed, extended, retracted or overturned, etc.
o Appeal judge can keep the law as it is
o Sometimes may change the law – by extending application, entrenching
application, or completely changing it
o Once case comes out it is binding on all courts below it in that jurisdiction
(but may be persuasive for other jurisdictions)
o Persuasive in Alberta – House of Lords (England), US
• The case is binding on all lower courts in that jurisdiction.
• The case may be persuasive for all other jurisdictions.
• Appeal case becomes the law on the question raised in that appeal
o E.g. don’t waive, at court charged $1000.00 for not waiving back at
someone. Go to CA, they say there is no law that says you must waive
• The law may be made by the judges or made by the legislature (provincial or
federal or other)
o Ratio – relevant to the case
o Dicta – stuff irrelevant to the case
• Case law or statutory law
o Over time, built up a body of cases come to us that tell us what the law is
o Legislature can pass laws – statutory laws (e.g. Criminal Code of Canada)
• But courts interpret statutes – the case becomes precedent and part of the law o Courts interpret a statute (say “this is what this word means”), which
becomes the precedent
• Next case at trial must apply the law as in the case, if the facts are similar
• How do we know if they are similar?
• Analogies and distinctions
• Next appeal will either say the facts are similar or not (and if not, what law to
Case 1 Case 2 Case 3
Rule 1 Rule 1, or new Rule 2 Rule 1, 2, or new 3
• No one can tell you the law, they can predict with reasonable certainty, but it can
The Common Law
• Statutes, Judge-made Cases, Cases Interpreting Statutes and Previous Cases
• English system of judge-made law
o Over time those judgments became the common law of the people
o Common – came from the people, not written by anybody
• System of legal reasoning
• Supremacy of precedents (that can be overturned by new precedent or statute or
• Sometimes refers to older days of the law
o When? Long time ago – the good old days
o Before Parliament or Legislature started codifying something
The Civil Law
• Civil Law: privacy of the Code
• Europe (not UK) plus Quebec (and Louisiana?)
• Other systems: mix of common law and civil law • Shariah law, traditional aboriginal law (in Canada and elsewhere), mixtures of all
of the above
The Common Law
• Important to learn how to read cases
o Spend time interrogating cases
o Have to read it with an exacting eye
o We’re going to start with old tort law cases
• Important to learn how to interpret statues
• Important to learn how to read cases interpreting statues.
• Important to know how courts think to predict outcomes of new cases
o Go to the seminar
o Read other materials
• “No toilets in park”
• “No vehicles in park”
o Same sentence structure
o Figure out from practical common sense – context
• Need to learn it is not just the law, you have to learn how to get the facts
No Pets Allowed
• No pets allowed (statute)
• No pets allowed, except small ones that fit in cups (accepted by the courts)
Keys to Reading a Case
• The name of the case, the parties, the name of the court, and date of the case.
• The issue or question presented. This may or may not be stated in the case.
o What is the question? Is the rule that only big pets are prohibited, and is a
hedgehog small enough? o Formulate the question in such a way, that when the reader (judge) reads
just the question the reader can say yes or no. If the reader says of course
not, you win.
• The legally operative facts. These are the facts that the case hinged on.
• The outcome or judgment: who won?
• The holding.
• The procedural posture.
Dixon v Bell
• Never, ever say “v”, say “versus”
• “Dixon against Bell”
• “Dixon and Bell”
• 1 STARK 286
o Citation to court case
o 1 (volume) STARK (written by guy in court – court reporter) 286 (page)
o Court reporter selling it
• Court writes it and puts it on their website for free
• Dixon – plaintiff, Bell – defendant
• Summary at the beginning – headnotes
o Someone else’s interpretation (like a CAN) – DO NOT RELY ON
Av. B Plaintiff v. Defendant
Awins, B appeals, then Aloses,Aappeals
B v.A Av. B
September 12, 2013
Dixon v Bell
Always be certain of any terms in a case – look them up
• Train yourself Action on the case – cause of action that arises NOT out of property
• Legal method of seeking recovery
Forms of action – at common law one needed the right form to sue
• “At common law” – good old days, long ago
• Forced lawyers to think of their case before they showed up on court
• Downside: if you made a mistake it was failed
• Now we have Statements of Claim
• Today the requirements we had come from these forms
Negligence is a legal technical term
• Technical terms are loaded; you will not misstate the law
• Strict liability – liable no matter what fault
• Absolute liability
“Young mulatto girl”
• Social context
• Girl – gender doesn’t play a role – not a legally necessary term
• Operate within legal ethics
• Ensuing term – not used anymore
o In the old days there were three terms (sitting of a session). Now the
sessions are annual.
• Moved – brought a motion
• Show cause – verdict will be executed. Show cause why it should be set aside.
o Win because the law is in your favour
o New trial -
Attorney General – Usually the Minster of Justice
• Top lawyer for the state
• Staff prosecute
• Historically, until about 50-60 years ago could continue to work in private
practice (didn’t get paid a lot). They were theAG (an honour) and could do
private work. English – refer to dates by the King (especially until up to 150 years ago) and the year of
• Alberta civil juries are rare
o Practical reasons
• Ontario, BC, Prairies more common
Charge to the Jury (trier of fact)
• Instructions to the jury – on the law
• Jury finds the fact and applies the law (from the judge) to the facts
• (Learn the law by reading the charge to the jury)
• Sometimes juries give specifics of decision
• Findings of fact – trial judge cannot change
o Creation of the facts presented at trial always in the hands of the lawyer
• Most judges are relying on the lawyer to submit the law – incentive to get the law
right for the client
• When a client walks in the door and says they’re being sued, ask who the lawyer
bringing the lawsuit is. Does the lawyer have a reputation?
• Lawyers create the law in the case and the facts
• Civil trial – balance of probabilities
Dixon v. Bell
• Judicial History
o Trial judgment: Verdict for the plaintiff – he is negligent
o Appeal (CKB):
• Ratio: a defendant who entrusts a 12 year old individual with a gun, loaded or
otherwise, is liable for the loss of services of a servant when the 12 year old
shoots a servant in the face
o State the legally opportune facts and whether the person was liable or not
o First holding: strict liability (100% liable no matter what) • “AG moved for a rule to shew cause why the verdict should not be set aside, and a
new trial had on the ground that the defendant had done everything that in point of
care and prudence he could be called upon to do, and that as he had put the gun
into such a situation as in his opinion rendered it perfectly safe, he had not been
guilty of such culpable negligence as to be liable in an action”
o Appeal to a panel of judges from the same court
o Court of King’s Bench (can look up Lord Ellenborough)
o Equivalent of a SCC decision – binding precedent on CKB or anything
• Today – Ontario Superior Court (trial) some areas of law when appealed go to the
Divisional Court of Ontario. It’s three other judges, who are trial judges, hearing
an appeal from the trial judge’s opinion. When they opine, it is binding precedent
on the divisional court and below.
• Appellate court – opine on law
• Ratio – rule of the case
• Obiter – whatever else
• Ratio, to Yahya, is the narrowest holding of the case
• Reasoning – part of the ratio
• Start with the narrowest holding
• Body of law that governs the sea
• Use the ship’s name – not R v. <>
September 19, 2013
• If you only rely on law at trial, the judge can find a way to make you lose
o Ignore the law
o Appeal the law; findings of fact are very hard to be appealed. Many times
the fact finders are judges; they can skew the findings of fact. You can
appeal the findings of fact and say the trial judge abused his or her
discretion, but there is a much bigger burden to change the facts on appeal.
Langridge v Levy, 1837 • Exchequer of Pleas – court of equity – administration of government revenue
o Today: the Federal Court
o Tax Court of Canada could have jurisdiction over a gun – tie the issue with
o Not always bound by the specific court – can go to others. Why would
they want to hear it? Judges were paid by the litigants (1800s).
• If guilty criminally (beyond a reasonable doubt), then guilty in tort (balance of
• Pleading in the alternative
o We didn’t have a bar fight but if we did he started it and it was just a flesh
• Once you are a judge you are no longer a lawyer
• Small jurisdictions – judges move around
• Judges can move courts sometimes – conflict of interest
• Plaintiff, Langridge’s dad bought a gun to use for son and dad
• Defendant, Levy sold the gun and said it was of a certain quality
• P used the gun and it blew his hand off
• Father brought suit in name of son
• D pleas not guilty (negligence) and D did not warrant the said gun to be made by
• Trial: Barron Alderson – pop up court
o Found a general verdict for P, damages 400£
• Appeal: Parke, B. (Barron Parke)
DArgument 1: Contract – When D sold the defective gun, a mere sale does not mean D is
liable for everything that happens to it
DArgument 2: Tort
Verdicts • General verdict – opposite: special verdict (1 charge? 2? 3? 4?). Here there are
more grounds for appeal, if you were guilty on 1 or all charges.
o Can make a motion to request a special verdict – only use it if you think
there is such fine distinction
September 24, 2013
Langridge v Levy
• Show cause – to prove why the D should have won (bottom of p.864)
o P is going first (because of procedure type)
• Dixon v Bell, one of the first cases of the time – no case law cited. Does P get to
recover from D for the acts of the servant? Twenty years later comes Langridge
with similar facts – gun involved, third party is injured, (usually always a
difference – as a lawyer, pounce on the differences).
• Statute of Westminster 1285 – a British code of law
o Just because it was British does not mean that it has no force in Canada
• Legal arguments from both sides are seen in older cases
o This may not happen in newer cases
o Tort argument – dangerous good, put out there – broad interpretation of
Dixon v Bell. If you put anything dangerous out there, whoever you injure,
you’re liable. D says no warranty, no privity. Judge – no contract and
warranty argument but was a fraud (liable because you lied, son was in the
vicinity). Lawyers have a skill to paraphrase a case in order to have it
sway the decision of the present case to their favour
• Judge tries to find fact patterns that match the fact patterns in the current case (the
fact pattern in Dixon v Bell is only similar in that the cases involve the same
object, and that negligence was involved in both cases) p.866 Dixon v Bell
• Ratio: the reasoning upon which the case was decided
o P. 869 (top) ratio
o If you lie about something and sell it toA, you are liable for whomever
you should have contemplated should use the product.
• *Obiter: all the other fluff; that which is not relevant to the case
o Deciphering between ratio/obiter/everything else can be difficult o Judges may use obiter as part of the ratio (for precedence)
• Judges decision (bottom of p.867) – this is usually all modern day cases include
o But you can find oral arguments of the lawyers on the internet
• Court is not ready to allow the Plaintiff to win under strict liability p.868
o Parke. B is a very careful judge
• Remember:Arguments from lawyers and principles and decisions from judges are
created based a lot on the interpretation of previous cases, the interpretation of the
case at hand, and what consequences a specific decision would have on future
Decision: P won damages for the tort of fraud.
• Narrowing the scope of the rule (entrenching it)
• Not being bought into reasoning in the rule in Dixon – narrowing scope
*Read the reasoning, but you will get much more if you look closely at the facts and start
developing a pattern. In addition to reading the language (ratio, dicta, etc.) look at the
factual aspects. When reading the outcome of a case where there is a factual
determination, construe the facts in the light most favourable to the winning party.
September 26, 2013
Winterbottom v Wright
• See “Cases”
• D’s argument could be: even if D gave a warranty, in Levy P won because of
fraud, not because of warranty. Gun salesman knew it wasn’t made by the gun
maker he said. There is no gun in this case (where there was in Dixon and in
• Cant sue Crown (Postmaster General) – King can do no wrong
Longmeid v Holliday
• Husband bought lamp for wife from D. D had lamp patented and warranted lamp
good to use. P’s wife used lamp, lamp exploded.
• Liability people cite Langridge (fraud probably only grounds to recover on). So
they asked the jury if there was fraud. Jury said yes. Ds counsel objected. Trial judge agreed no fraud, but declined to stop case. Different reasons why a trial
judge may or may not stop the trial.
• No liability people cite Winterbottom
Parke, B in Langridge cases narrows holding a bit.
• Special verdict
Social context concerning judges
• Industrial Revolution – beginning of products being mass marketed and produced.
o Judges – if they allow Dixon to be the rule, everyone can sue.
October 1, 2013
Dixon – dangerous stuff, liable
Langridge – similar, retreated to reasoning. Liability
Winterbottom – no liability, no fraud, no privity
Longmeid – not liable
See how the legal reasoning and common law practice is working. Sometimes courts are
following the language, sometimes they are not. There is a factual pattern informing how
the cases are going. Why are they coming up with the result they are coming up with?
Guns, liability. Carriage is dangerous but not inherently designed to be dangerous.
Thomas v Winchester, (1852) NYCA
• Just because it’s a “Supreme Court” does not mean it’s the highest court. Get into
the habit of looking up the structure of the courts.
• American case, but they cite English cases
o If you want to know about the law, take law prior to Confederation as a
given, as binding authority.
• Lawyer wrote question “whether the defendant…” – write to make it so the
answer is clear
• Judge: “The owner of a loaded gun who puts it into the hands of a child by whose
indiscretion it is discharged, is liable for the damage occasioned by the discharge”
(Dixon). Lawyers also cite Dixon.
• Liability patterns George v Skivington, 1869
• What do the judges think liability is attached to (dangerous or not dangerous)
Gun (Dixon) Liability
Carriage No Liability
Lamp No Liability
Wheel No Liability
Losee v. Clute
• See our prior opinions
October 3, 2013
Old Cases: no recovery if no privity unless dangerous goods.
3. Wheel for saw
What is the problem with the old rule?
• Getting harder and harder to keep straight
o E.g. gun powder dangerous, guns dangerous, but a circular saw is not. • MacPherson overrides Winterbottom
MacPherson v Buick Motor Co., 217 N.Y. 382 (N.Y. 1916)
• English cases, Winterbottom – some of the English cases still have a hold on the
law. In Canada the hold might be stronger – read cases carefully, don’t discard.
• Very little facts. E.g. P’s name? Legally relevant facts all in first paragraph
• Judge Cardozo:
o How do we know he is overruling Winterbottom?
o How does he create new rule?
Arguing it’s still within the new rule
o How do we know it is a new rule (for sure)?
When do we know if the rule sticks? Next case.
Next case, no matter how dangerous or undangerous the good, if
it’s a liability case and they cite MacPherson, it’s a new rule.
o What does dissent say?
Hold on, you’re changing the law. But Cardozo never makes that
o How do we know which is the better view?
Old rule was hard to predict
New rule an easy rule – you’re all responsible. Privity argument no
Donoghue v Stevenson
• Similar result
• Many opinions by the Justices, but LordAtkin’s judgment is the one quoted
• “At present I content myself with pointing out… and the extend of their remedy”
Goals of This Section • What is holding?
• Facts + outcome
o One basis rule of common law is like facts are treated similarly
• Ratio if you can figure it out (one case at a time)
• Does next case overrule, extend, retract/retrench from, affirm older case?
• Can look at ratio OR facts + outcome to understand when case is overruling prior
MacMillan v Brownlee
• Cause of action in tort, tort of seduction
• Case about how to interpret statute (SeductionAct)
• If its her own right, there’s no evidence of harm
• At trial, Ives J. overturns the verdict
o Buddies helping out buddies (Brownlee)
• Appeal: uphold setting aside jury verdict
o More of Brownlee’s friends
• SCC: overturned CA
o Trial of fact made factual determinations, stick with that. Only overturn
verdict if it’s ridiculous.
o No friends of the Premier
• JCPC: jury trial sacred
October 8, 2013
• So far we’ve been focusing on factual patterns involving. Don’t need to know tort
law. Look at how the courts decide something based on analogy and distinction.
o Common law method, common law reasoning, analogies and distinctions,
process of a court, who’s trying the case? • Definition questions – can bring dictionary with us
• Open book exam
• New set of cases – similar type of question could come
• Alot of it is statute based, cases are the ultimate arbiter of what the statute means
• Very different than the civil law system (everyone but English speaking world)
o Legislation supreme, courts interpret it, but their interpretation might not
be the interpretation for the next court. E.g. Quebec.
• SCC, when adjudicating arising out of the Civil Code of Quebec, is technically
not the final arbiter on what that means. But a lower court would always follow.
• Our system in Canada is a hybrid. Even the Quebec civilian system gets molded
in to common law.
• Where does legislation come from? Pure common law comes from the courts. The
source of the law is the legislature, being either Parliament (Ottawa) or provincial
(each provincial capital).
• Canada has two houses: House of Commons and the Senate. One body is elected,
one body is appointed.
• Bills must be signed by Her Majesty the Queen or her Representative (Canada
GG, Provinces Lieutenant Governor). Bill goes through three steps to become
enshrined in law. What happens if Bills aren’t signed? It’s not enacted.
• Statute vs. Regulation
o Statute – passed by legislature
o Regulation – passed by order in council
“In council” – cabinet (passes regulation). Technically signed by
the Lieutenant Governor – “orders in council”. They derive their
legitimacy from theAct
o Legislation regulation rules (put out by agency doing the enforcement)
• Act will tell you there is the possibility of Regulation
o Regulations happen after it’s passed in the Legislature
• Who administers theAct? o Department or an Agency
• King Henry VII clauses – Parliament would pass laws and he would say the King
could change this whenever he wants – sometimes Regulations nullify anAct
o Common law disproving these clauses is dicta
• Different versions of statutes – need to know the law when the event took place.
Sometimes when the legislature changes a word from one to another, you can use
that to interpret the current meaning of the language. You could argue that since
the legislation changed it, this is really what they mean now.
• Today the Mann Act has changed
o “Debauchery and immoral purpose” gone
• “Transports in interstate or foreign commerce, or in the District of Columbia or in
any Territory or Possession of the United States”
o Crossing state lines
o Constitutional jurisdiction of Congress – jurisdictional hook – gives limits
of where the law applies
o In Canada, there is still a division of government (provincial & federal)
• “In error” – “on appeal”
• 227 US 308 – official US reporter
• Justice McKenna
Hoke – theAct is constitutional
• Legally relevant facts
o Lived inAtlanta, moved to Tampa
• Railroad ticket – transporting
• D’s argument – indefinite liability – then every female dance show is debauchery
• Court is interpreting theAct very expansively o “In the view of the court the statute had a more comprehensive
prohibition, and was designed to reach acts which might ultimately lead to
that phase of debauchery which consisted in ‘sexual actions.’”
o Court looks at social context of the times, just like the context of the times
of the tort cases we previously looked at
o The government wants to crack down on this and we’re going to help them
• Woman helped herself cross interstate lines
• Act – “whoever knowingly transports”
• D’s argument – she did not transport herself
• Purpose of Act – to stop prostitution
October 10, 2013
• For know, think about the basics of reading statutes
• Start with the plain meaning of the text
• The court said, “This is a rapid problem that congress has identified”. Text looks
very plain. Debate: stick to plain language of text. Some judges just interpret the
words as they are written. Problem: always need context. Is it the judges job to fix
badly written legislature?
o This is the era of from rural to urbanAmerica; you get the good and bad.
o Actions: prohibition, MannAct
Mortensen v US
• The word “purpose”
• The coming back from the trip is part of leaving
• “Purpose” of leaving was vacation, “purpose” of going back was going home
• What happened to the expansive view, Holte? Gone too far, retreating.
• No difference in how the courts approach legislation than how they interpret their
own common law. o Court can overturn themselves
o In Dixon, etc. the courts were interpreting their own words; no statute,
pure common law. Here there is a text from Congress.
Cleveland v US
• Evil from the MannAct – ‘white-slavery’
• Is this white slavery? No
• Lawyer, descriptive role – what is the law?
US v Beach
• Transported for the purposes of prostitution within DC
• MannAct – in the District of Columbia. Case Closed.
• Argument of R: the decisions regulate interstate
• Purposive – expansive view, to narrow the reading of the text of the statute
o Take words against your client and use an argument
• Legislation passed by Parliament or Provincial legislature.
• Must pass both houses of Parliament (House of Commons and Senate) or (just one
house) legislature, and then signed by the Queen (or her representative: Governor
General or Lieutenant Governor).
• Statute is binding law that is interpreted by courts.
• Sometimes legislation allows cabinet (called Lieutenant Governor in Council or
Governor General in Council) to pass Regulations that augment the Statute.
o Never see the word Cabinet, but LG in Council, GG in Council
• “Henry VIII clauses”?
o Completely undue the statute
o Constitutionality? Never formally adjudicated
• Regulations are passed by Order in Council o LG in Council, GG in Council
o Judicial appointments
• Sometimes legislation creates an agency that administers the legislation
• They can pass rules.
• Typically, the Ministry charged with the statute proposes regulations, which the
Minister brings to cabinet.
o Regulations usually administrative, mechanical
• Amending legislation done by legislature
• Regulations amended by cabinet
• Rules amended by agency
• Expansive or narrow
o Expansive – breaking out, not constrained by text
• Purposive approach (expansive)
• Canons of construction or statutory interpretation
• We will see later.
• Specialized bodies created to administer the statute, especially regulatory statutes.
o Run oil and gas, Quicklaw or Westlaw, most are appeals from ERCB
• Example, Alberta Utilities Commission, Energy Resources and Conservation
Board (ERCB): http://www.pao.gov.ab.ca/?file=directives/staffing/sign-agencies-
• They have different structures.
• Some just administer the law by regulating various aspects of the law: Canadian
Food Inspection Agency.
• Some have quasi-judicial powers as well as regulatory (rulemaking plus
o Violate own rule, violate law o E.g. AUC
• Quasi-judicial bodies have court-like powers:
• AUC Act:
o Commission has powers of Queen’s Bench judge
o (11) In addition to any other powers conferred or imposed by thisAct or
any other enactment, the Commission has, in regard to the attendance and
examination of witnesses, the production and inspection of records or
other documents, the enforcement of its orders, the payment of costs and
all other matters necessary or proper for the due exercise of its jurisdiction
or otherwise for carrying any of its powers into effect, all the powers,
rights, privileges and immunities that are vested in a judge of the Court of
Can supine you, have police come into business and seize records
• Quasi-judicial bodies have court-like powers:
o They have their own rules of procedure and evidence.
o They conduct hearings.
o They make decisions.
o Losing party can appeal internally.
o Losing party can then (or also) appeal to court – which court? Depends on
statute (and other factors).
o Administrative law
• Immigration and Refugee Board of Canada:
Federal Court ofAppeal
InternalAppeal - appeal
Initial Hearing - Claim to be a refugee, IRB says no.
- Findings of fact – might not even be a lawyer or
legally trained most are not.
Example: • AUC
Alberta Court ofAppeal
October 15, 2013
• Law is what the law is
• Morality separate from the law
• Certain rights, the state doesn’t have a right to go there
• Lawyer’s lawyer:Ajudge who explains things plainly and in terms of the law
without extra flourishes.
Re Drummond Wren,  OR 778 (HC)
• Are these covenants around today?
o Illegal, but around
o When a covenant is struck down it sits there until Parliament does
Re Noble and Wolf, 
• Who's perspective is better?
o Depends who you are.
• Argument: in common law, our judges feel more empowered to be activists. The
doctrine of public policy is a legal doctrine. It allows judges an out.
Lochner v People of State of New York, (1905) 198 US 45
• State of NY – minimum wage and maximum hours
• SC US struck it down under liberty of contract (Charter value) • Is the judge framing the decision as positive or natural?
Edwards v AG Canada
• Police magistrate. Went to watch prostitution trial and kicked out (not for her
ears). Then how is the woman being tried in this case? Wrote to government,
appointed as first female judge to try these cases.
• Famous for: living tree
o Constitution open to ongoing interpretation
• No real litigants, government asks whether law is constitutional or not
• Provincial government asks CAand federal government asks SCC
• US does not have this power, SC US cannot answer
• Americans have to find someone to apply to law to and go through to court
system to the Supreme Court.
o Cumbersome and expensive. So, a lot of US segregation cases were set up
(someone try to break the law) to challenge it in court.
o Reference cases are abstract
October 17, 2013
R v Morgentaler, 1988
• Why is the question phrased as “compelled” – question likely posed by the lawyer
o How you pose the question
o “Right to an abortion” sounds like an entitlement
If Wilson J had said this is a right, it would have been a policy.
o “Compelled” – forced, lack of control, right to be free from trespass
o Phrasing of the question with a more concrete legal argument
Free from force
• Charter s. 7 – right to life, liberty, and security of the person • As a lawyer, if you can get a judge to buy your argument without getting up there,
you’re on much safer ground. The lawyer here had a much more solid case.
• Question takes a narrow, positive approach. Moore oomph than a broader
• Apolicy question still has to be answered, but how you as the lawyer bring the
policy in (in the open or masked under positive law) is an art.
Roe v Wade, 1973
• Protected by the Bill of Rights or its penumbras (shadow of the sun – grey area)
o Opens them up for attack
R v RDS
• Judges, once appointed to the bench, never write except for judgments. Cannot be
• Racial discrimination is a big deal. The judge is very justified.
Loving v Com
• White man and black woman left Virginia, got married, and came back to Virginia
married. Sole contention is interracial marriage law violation of the Constitution.
• The narrowest positive law: this question is not new, it has been brought up here,
in other states, and every court has upheld it. US SC has never taken the case,
we’re not going to change the law. He never once gets into policy.
Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37
• Religion, don’t want pictures taken for driver’s license. Post 911Alberta said
everyone needs a photo. Alberta CAstruck down law. SCC 4:3 upheld law as
constitutional – nation security justifies infringement on religious beliefs.
• Court (McLachlin): nation security trumps racial beliefs (opposite of RDS)
o She’s from Pincher Creek,Alberta – a lot of Hutterites
West Virginia State School Board of Education v Barnette, 1943 US
• Majority: public policy, natural:
o “If there is any fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to
confess by word or act their faith therein. If there are any circumstances
which permit an exception, they do not now occur to us.” • Dissent (Jewish judge): positivist – judges should not be involved in policy
• Contrast between judges, but both from liberal school of though
Sources of the Law
• Start with the Constitution (and what are its sources?)
o Canadian Constitution is a big document; it’s not in one spot. There are a
lot of conventions that are unwritten. The Canadian Constitution is a bit
more tough to deal with,
• Statutory law
• Common law (and Equity)
o Common law evolves and it is slow. One day there is no common law and
a judge makes a normative decision and later all judges take positive
approaches and use that decision. But it becomes outdated.
• Civil Law in Quebec
• Aboriginal Law
• International law
Common Law + Statutes
Settled takes old law as given
Now can develop its own law by statute – what about common law?
Statutes stay (for most) + original law + develop own new laws
Reception of Common Law
Dixon v Bell – does it apply in Canada? How do I figure that out?
• Settled – empty land, rest of Canada
• Conquered – Quebec
o Statutes brought, but their day to day law stays the same. • Assume generally empty, no Parliament, no source of law, bring common law and
statutory law with us.At some point we get to make our own laws.After that date
(date of reception) we make our own stuff up. What’s going on in the motherland
doesn’t statutorily apply here anymore.
• But the common law reasoning, even though not binding…
• In Canada, used to be able to appeal to the JCPC
• EXAM – who receives and who keeps? Quebec keeps, everyone else receives.
Dates of Reception
• Reception – any cases that are older, they are part of the law. They are not
persuasive; they are binding.
• Some sample reception dates
o Newfoundland – 1832
o Nova Scotia – 1758
o New Brunswick – 1660 – fixed by judicial decision
o Ontario – 1792
o Manitoba – 1870 – fixed by provincial statute
o Alberta – 1870 – fixed by federal statute
o British Columbia – 1858
Why does this matter?
Key Developments in Canadian Legal Independence
• British North America Act, 1867 (U.K.)
o Confederation, start of the Constitution in Canada, July 1 1867
o BNAAct is an Act in the British Parliament
• Statute of Westminster, 1931 (U.K.)
o Canada, NZ,Australia, etc.
o Problem: although gave us pretty much full independence, we had to go to
UK Parliament to get Constitution amended
• Abolition of criminal Appeals to JCPC (1933) o SCC was seen as another regional court
• Abolition of all other Appeals to JCPC (1949)
• Canada Act, 1982 (U.K.)
o 1. Patriation (repatriated Constitution)
o 2. Charter, 1982
o 3. Other amendments (qv)
o Charter in this Act
• Significance of Royal Proclamation –
o 1. King can still legislate;
o 2. Quebec governed by English law;
o 3.Aboriginal lands and hunting rights protected (qv)
• Formation of Canada – BNAAct or CanadaAct
Common Law Reasoning
• Stare decisis (as opposed to Res judicata)
o Follow common law. Very rare they do overturn
o Res judicata: on the facts of that case. Once you litigated, you cannot
litigate again, even if someone wins a similar case years later.
• Today – higher courts bind lower courts
• Judicial pecking order – see p 55
o Any treaties Canada signs are not self-enacting. It has to be enacted by the
federal government by Parliament and if it is provincial aspects they must
pass it as well.
o Common law of international law October 22, 2013
A. Definition Questions
1. What do the following terms mean: ‘action on the case’, ‘assumpsit’, ‘trover’,
‘motion to show cause’, ‘rule nisi’?
2. What is the Canadian equivalent of the Court of Exchequer today?
o Federal Court
3. Historically, the Court of King’s (or Queen’s) Bench operated as a trial and
appellate court. Where in Canada, do we see a similarly operating court?
o Ontario Divisional Court – CAwithin the trial court of the Superior Court
The year is 1900. The location is Calgary,Alberta. Miley Cyrus (“Cyrus”) has decided to
get into the foam-hand business. She purchases foam from Liam Hemsworth
(“Hemsworth”), who is a foam supplier. She manufactures the hands and stamps her
trademark ‘Hannah is Over™’on them. She then sells them on a wholesale basis to
Robin Thicke (Thicke”), who then sells them on a retail basis to various shops. One such
shop, ‘Achy Breaky Heart Emporium’(“ABHE”) keeps the foam-hands in stock as a
main feature in the front of the shop.
Sinead O’Connor (“O’Connor”) is a customer who is shopping atABHE. She picks up a
few items and at the checkout notices the foam-hands. She picks up one of the hands, and
adds it to her items. She then pays the cashier for her items, and walks out. Later that
week, all excited about an upcoming soccer match in town, she decides the foam-hand
would be an excellent way for her to cheer on her favorite team. She even invents a chant
that has “nothing compares to you” as the chorus line in her chant. She also invents a
funky move involving the foam-hand. She decides to demonstrate her chant and move to
her good friend Simon Cowell (“Cowell”), who happens to be at her place visiting her
from England. She starts to do her chant and moves, when the foam hand she is holding
slips out of her clutches and pokes Mr. Cowell in the eye. It turns out that the foam in that
particular foam-hand had hardened, due to being over-exposed to heat in Cyrus’s factory
and due to bad foam quality supplied by Hemsworth. Mr. Cowell is rushed to the hospital
where he has to pay a princely sum for medical attention (he did not have medical
insurance). Ms. O’Connor is emotionally scarred from seeing her good friend injured.
1. Mr. Cowell sues Cyrus, Hemsworth, Thicke, andABHE for the cost of his
medical treatment (as well any other damages he can recover). If he sued in the
trial court at Calgary:
a. What would we label Mr. Cowell, Cyrus, Hemsworth, Thicke, andABHE? Cowell: P
Cyrus, Hemsworth, Thick,ABHE: Defendants
b. What would the style of the case be?
Cowell v Cyrus
c. If he lost at trial, and he appealed, to which court(s) could he appeal to?
ABCA SCC JCPC
Or ABCA JCPC
d. d. Retell the story above, but only reciting the legally relevant facts.
i. Cyrus Hemsworth Thicke ABHE. O’Connor purchases from
ABHE. Dances, foam hand slips, pokes Cowell in eye. Foam hand
hardened, due to being overexposed in heat in Cyrus’factory and
due to bad foam from Hemsworth. Cowell injured, costs money.
O’Connor mentally suffered.
2. If Cowell sued Cyrus, Hemsworth, Thicke, andABHE, and a trial was conducted,
who could be the trier or finder of fact?
o Judge or a jury
3. If Cowell sued Cyrus, Hemsworth, Thicke, andABHE, a jury trial was conducted,
and the jury found in Cowell’s favor, what could one or more of the four parties
(Cyrus, Hemsworth, Thicke, andABHE) do at the trial court to avoid the jury
verdict? What could they do after that assuming the trial judge did not agree with
o Make a motion to overturn the jury verdict
4. If Cowell sued Cyrus, Hemsworth, Thicke, andABHE, and a jury trial was
conducted, what types of verdicts could the jury be asked to render? Describe the
types of issues (up to four) that would be posed to the jury under the various types
o General verdict, special verdict (directed verdict – we didn’t talk about)
o Special: Cyrus’negligence, Hemsworth’s negligence, did the negligence
cause the har,? Amount of injury, etc.
o General: how are you liable and how much do you owe
5. If Cowell sued Cyrus, Hemsworth, Thicke, andABHE, a jury trial came back in
favor of Cowell, and the four parties appealed: a. What is Cyrus’s best argument for defeating liability (based on the caselaw
we read). Will it work?
b. What is Hemsworth’s best argument for defeating liability (based on the
caselaw we read). Will it work?
c. What is Thicke’s best argument for defeating liability (based on the
caselaw we read). Will it work?
d. What isABHE’s best argument for defeating liability (based on the
caselaw we read). Will it work?
For above – aalzying or distinguish foam hands from the various products we
met in the pre-MacPherson cases. So Cyrus (don’t go after facts, go over legal
Note that the jury found against Cyrus, which means that she was negligent as a matter of
fact.As a matter of appeal, which deals with questions of law, it is not worth attacking the
finding of fact that Cyrus was negligent. The best argument has to do with privity or the
lack of it between Cyrus and Cowell. Indeed, in Longmeid, the court found no duty owed
when a lamp designer sold a lamp to a man whose wife was injured by it.Alamp, not
inherently dangerous, but has the potential to cause more harm was not an item dangerous
enough to warrant imposing a broad duty for.Afoam-hand, a fortiori, should therefore
not be subject to the rule of Dixon or Langridge. [Discuss more aspects of foam-hands
versus the other products of you think they will help etc.]
This argument will probably work. [Probably for all of a-d]
6. Now assume the year is 1935. Would your answers to 5(a)-(d) change?
o Depends on how you read MacPherson v Buick. Then argue it to Yahya.
Depending on what reading one has of MacPherson, liability could attach
to Cyrus, Thicke, andABHE. What about H