LS 101 INTRO
UW Ace –
PowerPoint notes will be there
Things that you can be doing now
Get to know your Professors Civil Law vs Criminal Law
Defamation refers to the publication of a false statement about another person that defames or reduces
esteem or respect in the eyes of others.
Comparison of 2 Cases
Case #1 – Ralston v. Fomich
Alderman Fomich – some people wish to push a project through the system
“You’re a sick son of a bitch, you can quote me that in my opinion Ralston is a sick son of a bitch”
New Dictionary of American Slang finds son of a bitch to be remarkable or superior.
Sick means that the plaintiff was mentally ill or unstable.
Decision: yes it is defamation
Case #2 Roth v Aubichon
Mr. Aubichon said “there is Dwayne Roth, the so called lawyer, who doesn’t know his asshole from a hole in
the ground. Who knows where he got his license but it was somewhere in a KTel box.”
Decision: language was inappropriate. Degrading phrase to express his opinion to the
extent of the plaintiff’s knowledge” NO not defamation. Introduction to the Law Lecture 09/10/2012
Law is the cement of society and also an essential medium of change. A knowledge of law increases one’s
understanding of public affairs. It’s study promotes accuracy of expression, facility in argument and
skill in interpreting the written word, as well as some understanding of social values it is of wider vocational
relevance than most Arts subjects” – Glanville Williams
How different is what we see in the media from what actually takes place?
What is Law?
Governs human activities
Legislation, proclamations, regulations, orders, Constitution, judicial decisions, legal principles
Subspecialty of law
State – courts, police, government, Crown Attorneys
Food For Thought
•Ontario, the Office of the Registrat General registers name through birth certificates and name changes
Talula Does the Hula From Hawaii
“Number 16 Bus Shelter”
Adults have tried to change their names and have been rejected: “1069” (a name cannot be a number) “III”
(A symbol cannot be a name) “They” and “Bean” have been allowed, “Boomer the Dog” denied by a
Civil Law v. Criminal Law
Civil Law: the types of law that deal with noncriminal matters such as contract law, torts law, property
law, administrative law etc.
Criminal Law: Law that concerns conduct which interferes with the security of society. Introduction to the Law Lecture 09/10/2012
Civil law is practiced by man more lawyers in Canada today
• Disuptes can arise between individuals, between an individual and corporations.
• Called “private law” or civil law, and include things such as tort, contract law, and civil litigation.
• Private law is the law governing conflict between persons
•Public law: the law between individuals and the government
Criminal law, administrative law, constitutional law, and international law.
Civil Law – Roman Law
Civil law also means a system of law based on the Roman tradition. Most of Western Europe adopted
the Roman system of law, which eventually came to be known as the Civil Code system.
A system of law based on cases or “judge made” law
•Common law can mean the system of law based on judicial decisions
•All of Canada, other than Quebec, uses a common law system in addition to countries lik ehte United
States (except Louisiana) England, New Zeland and Australia
• Term common law can also mean the system of case based law that is in contrast to statute law.
Themes of the Course
1. The law is full of uncertainty
2. The law is full of rapid change
3. No one can say for sure what the law is until the courts decide
4. Hard cases make bad law
1. Different Views of the Law
Natural Law Approach
• Thousands of years through Plato, Socrates and Aristotle
• Natural law theorists say that morality cannot be divorced from the law; but rather they are one in the
• Morality – conformity with rules of conduct dictating what is right and what is wrong. A standard by which
an action is determined to be either virtuous or immoral. Introduction to the Law Lecture 09/10/2012
• The law should be fixed and have a natural order just like is found in our natural surroundings.
•Absolutely possible to understand true morality, and the law should therefore reflect these principles.
• If a law does not conform to morality, then it is not a valid law, and if a law is not valid, you do not need to
• This is based on the Latin tex injusta non est lex, or an unjust law is not a law.
Natural Law – Criticisms
How do you determine?
In Canada as it is just too “difficult to discern a moral soul with such a product of conflict and compromise” –
Canadian Charter of Rights and Freedoms
2. Legal Positivism
Parliamentary supremacy the doctrine that Parliament is the only lawmaker and this ability cannot be
overridden or set aside by the courts or anyone else.
•Law divorced from morality
• Not identify what is moral
• Observed and measured
• Interpret the law set down by the lawmakers and not to make their own moral decisions
Language is the key
If you do not agree – redraft not ignore Introduction to the Law Lecture 09/10/2012
Phrase –nulla poena sine lege or there is no penalty without a valid law.
“Black letter law” – legal principles that are old and settled and should be applied strictly.
Legal Positivism Criticism
• Law is man made
• Why do we follow?
• H.L.A Hart said that we have a “habit of obedience” in that we learn the right and wrong things to do
during our childhood.
• No morality?
3. Judicial ( Legal Realism)
• Judge is the most important person
• Because hard to predict?
• Something more than law
Economic, social context, and political
Who are the parties, life experience, values?
Law is what that judge says it is?
• Right side of the bed” theory
• Psychosocial makeup of judge – right?
Judicial (Legal) Realism Criticms
• What the “judge had for breakfast” school of jurisprudence
• Far too much emphasis
Food For Thought
• National Academy of Sciences Introduction to the Law Lecture 09/10/2012
• Israeli Judges
• Parole of prisoners
• 65% beginning, none by the end, back up to 65% and falling again
Feminist theories, anarchistic are other theories of law
Examples – No Vehicles in the Park
• H.L.A. Hart
• “a legal rule forbids you to take a vehicle into the public park. Plainly this forbids an automobile, but
what about bicycles, roller skates, toy automobiles? What about airplanes? Are these, as we say, to be
called ‘vehicles’ for the purpose of the rule or not?”
o Natural law
• What about a stroller? Wheelchair?
• Is a law ever not a law?
• What if no one believes in the law?
• Case based philosophy of law in this course
• S.M. Waddams has noted, the law is better conceptualized as a “continuing process of attempting to
solve the problems of changing society, [rather] than as a set of rules.”
• TEST CASE : A lawsuit brought to establish a widespread and important principle of law or right.
Sometimes many cases all agree to be bound by the decision in the test case.
• S.M. Waddams has said the “study of law, however, can never divorce itself from a living working
system,” and I add that living system cannot be divorced from the theory”
• What is going to happen in this particular case?: Introduction to the Law Lecture 09/10/2012
• Packer v. Packer,  2 All E.R. 127 (C.A.) the judge said that if “we never do anything which has not
been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes
on, and that will be bad for both.”
• Living tree theory – law evolves and expands as time goes on
• Not always concerned with “justice”
• Technical detail such as the way that the evidence was collected, or the filling or certain documents.
• “hard cases make bad law.”
• John Willis once said that the “law is a part of Western society’s dream of a life governed by reason.”
Note on Quebec Law
• Quebec’s system of law is based on Roman law
• Although the rest of Canada is governed by a system of a Civil Code, and is also call”d “
• Although some Federal statutes, like the Criminal Code of Canada are in operation within Quebec, the
whole system of commercial obligations, property law and most of family law is not the same as it is in
the rest of Canada
• The primary source of law is the legislation – judge does not need to find another case to support their
decision, finding a principle in the code is enough.
• Common law for criminal law.
• The law is full of uncertainty; the law is full of rapid change; no one can say for sure what the law is until
the courts decide Introduction to the Law Lecture 09/10/2012
• Waddams says, “it would be very hard upon the profession, if the law was so certain, that everybody
• Very complex, but very flexible
Waddams – Canadian citizens were presumed to know the law “except Her Majesty’s judges, who
have a Court of Appeal set over them to correct their errors.” Chapter 1 09/10/2012
It is important to look at the roots of civil law of France and the common law and parliamentary system of
England, which were the sources of Canada’s laws and legal institutions.
As society changes, people changes their values and views, and so the law must change.
A Brief History of Law
Law and religion used to be inseparable; law used to conform to the moral standards and rules of conduct
demanded by religion.
Rules designed to maintain order in the ancient world were sometimes recorded on stone tablets
Ex: Code of LipitIshtar of Sumeria;
Code of Hammurabi, king of Babylon (Iraq
Mosaic Law of Israel
the Twelve Tables – Rome
European Civil Law
Emperor Justinian (ruler of the eastern portion of the Roman Empire 6 century) – code maker who had the
most influence on modern laws
He wanted to retake Rome and reassert Roman influence after tribes invaded. It never happened.
Germanic tribes were successful, so in the end Germanic and Roman influences together shaped local law.
Christians saw secular law as inconsistent with God’s law. God was supposed to be the source of all law.
Few respected courts, so the Church helped resolve conflict by battle or idea. Ie) fights, putting hand in
13 – 14 century – renewal of interest in intelligence and science brought attention back to the law.
Justinian’s Code became an influence once it became the basis for the legal curriculum at the University of
Bologna, the primary institution that offered a civil or canon law degree in Europe.
From Bologna, students went on to teach Roman law in universities throughout Europe. Chapter 1 09/10/2012 Chapter 1 09/10/2012
The theory about law advocated in universities as refined by Thomas Aquinas – it is also known as the
natural law theory.
Law was studied but the goal was not to establish a practical system, they wanted to develop a
philosophical and theoretical foundation for the law.
Since it was approached as an ideal, it was not this law that was applied at the practical level in places
across Europe. They developed their own codes over the years that were influenced by German tribes and
Roman laws. Ie) The Coustomes of Paris – which was adopted in many other locations like Quebec.
The approach to the study of law began to change. Scholars became interested in merging what happened
at the local level and the ideal of law taught in universities.
This laid foundation for subsequent codiciations which created universal laws made to be applied in courts.
Ie_ Napoleonic Code – the French wanted a legal code free of royal influence.
English Common Law
Development of law was quite different in England.
After the Romans’ withdrawal the English felt the need to rid the country of Roman influence.
Judges declared the law as the need arose and they followed fellow judges decisions, this then became
known as the common law of England.
English judges played significant role in law making
Roman law was still being taught in England and did have influence over clerics.
The Norman Conquest Chapter 1 09/10/2012
Unique feudal system – when William the Conqueror’s normand invasion of England happened.
The system began as a method of rewarding those who had sided with William in the war and punishing his
An important factor of feudalism was the nature of the political power that it gave the king.
The king could only exercise his power if the noblemen below him supported and sustained him in his
Noblemen assumed responsibility for maintaining order and justice in their jurisdictions.
Ecclesiastical courts also formed a significant part of England’s rudimentary system.
Clergymen, who were judges in church courts, were trained under Roman law and canon law so decisions
reflected Roman legal principles.
Remedies in church courts were less severe than in other courts which led to conflict and eventually the
monarch stepping in to curtail the jurisdiction of the church courts.
Concept developed during William’s reign.
It was recognized in AngloSaxon times that kings and lesser individuals had a special righ to punish those
who disturbed the peace of their households.
In German law, the violation of a person’s peace was a violation of the law.
William extended the concept of the king’s peace to the entire kingdom so that any person who wrongfully
harmed another breached the king’s peace.
In our legal system the procedure used in criminal matters, the state acts as the offended party, aka king’s
peace. Chapter 1 09/10/2012
After William there were several weak kings until King Henry II. He wanted to reassert monarchial power
so he stripped the nobles of some of their administrative responsibilities and gave the people the right to go
to a king’s court to have their legal disputes settled as opposed to the court of a noble.
The Royal Courts
By increasing the judicial jurisdictions of his courts, Henry managed to reduce the power of the barons and
centralize the legal system.
A number of royal court judges were appointed to travel through the kingdom to make royal justice more
accessible to the people.
The Writ System
Henry also expanded the writ system.
A writ was originally a letter from the king that ordered someone to do something, but it became a
document authorizing and defining legal action.
The chancellor began issuing writs directly, allowing people to bypass the manorial courts.
Soon a different style of writ was designed for each different kind of dispute. Choosing the right writ
became a procedural requirement.
The writ system played a role in the creation of a permanent central court known eventually as the Court of
Common Please. English common law was dominated by the writ system for over 700 years.
Under Henry II juries were also used in royal courts
Grand Juries – consisted of 12 prominent knights brought together to ensure that wrongdoers were
brought to justice.
When travelling judges came to town, the knights were responsible to produce offenders and lay
complaints. Chapter 1 09/10/2012
Petite Juries – participated in the trial itself not as deciders but as witnesses to the action
Since the judge was a stranger, local people were brought together
It was still mostly the more important matters that were brought before the royal courts. The lesser courts
still dealt with the bulk of disputes between the parties, like our provincial courts do today.
The Magna Carta
Two kings after Henry II came King John, who was unpopular.
There was a revolt because of tax burdens he imposed and the rebellion culminated in John signing the
Magna Carta at Runnymede in 1215.
The Magna Carta is considered a great document in the establishment of liberty and freedom.
In reality it entrenched feudal inequities. It gave rights to the barons at the expense of the king, but it left
the majority of people (peasants and serfs) unprotected by its provisions.
Stare Decisis is the legal principle of determining points in litigation according to precedent.
Judges avoided creating law, they merely applied laws that already existed in the customs and traditions of
The royal courts were one unified body under the jurisdiction of the king and they eventually developed one
system of rules common to the whole kingdom.
Judges became bound to follow decisions of other judges in similar cases.
Edward I and Parliament
Reaffirmed Magna Carta, ensured growth and strengthening of parliament
Turned to the group of nobles who had been referred to as the “great council” and were now called
“parliament” to obtain approval for his policies. Chapter 1 09/10/2012
This parliament laid the foundations for democracy.
Existing writs could be modified but new causes of action could not be created.
The job of making new law now fell upon Parliament – thus creating the concept the supremacy of
Over the next century, parliament wanted these three powers:
1. Control of national revenue and expenditure
2. The exclusive right to pass laws
3. The right to determine general policies for the nation
These rights were won after the English Civil War.
Common Law Courts and Court of Chancery
Dissastisfied individuals with limitations of common law courts petitioned the king directly for relief.
This practice led to the development of a separate court known as the Court of Chancery. It developed a
separate body of law known as equity .
Equity was meant to smooth out the roughness of common law, not replace it.
No specified rules.
Remedies applied at discretion of decision maker.
Main argument against was that the Court of Chancery did not follow precedent like other common law
Eventually the common law courts and the Court of Chancery were merged into one system, but the two
bodies of law developed by each continue to be a unique and important aspect of our legal system today. Chapter 1 09/10/2012
Henry VIII and the Attempt to Balance Power
Broke with Roman Church in 1534 thus furthering England from Europe and Roman law influence.
“Action on the case”
Prior, merchant traders were governed by their own rules developed within their merchant guides.
They settled their own disputes and functioned independently. They had their own system of law known as
Law Merchant .
As the guilds dissolved the merchants turned to local courts which eventually applied the Law Merchant.
Now mercantile laws are much different from principles of common law because of this.
English Civil War
Petition of Right was drawn up by Commons and imposed on the king Charles I.
Set out many fundamental liberties that were said to be the right of all subjects. Abolished arbitrary
taxation, arbitrary imprisonment and marital law, and discontinuance of the practice of billeting troops with
When he tried to dissolve parliament he was eventually forced to sign the Bill of Attainder, and the Triennial
Act, n act that said he could not dissolve Parliament without consent of the House of Lords and the House
There was eventually a war because Charles wasn’t happy with radical reforms, and the parliamentary
forces under Oliver Cromwell defeated royalists and killed the king.
The Impact of the English Civil War on the Courts
Authority of Parliament was firmly established, and for a while there was no monarch, in 1660 when there
was again the king had considerably less power.
During the civil war judges aligned themselves with parliament.
Revolution freed judges from royal interference Chapter 1 09/10/2012
Today the House of Lords is the highest court of appeal in England
The primary role of the courts was affirmed as interpreters and decision makers, not law makers.
Legal Theory in England
Natural law theory was no longer appropriate, it was not rational
Jeremy Bentham and John Austin – in order for a law to have validity it must be given by an
authorized person or body and that laws could not be defined in terms of morality
This new approach to law was known as legal positivism .
The theory helped justify the role of Parliament as primary lawmakers.
In a positivist system, the judge must determined whether there is any parliamentary legislation or case law
that applies ad if so apply that law no matter how distasteful the outcome. It was up to Parliament to
Socialism was a new factor in the political environment
Right to vote was extended through the Reform Acts
Queen Victoria created the modern relationship between the British Crown and the government
1832 – Uniformity of Process Act abolished technicalities that had plagued common law
Writs or forms were abolished.
Standardized rules of procedure were introduced. Chapter 1 09/10/2012
The Judicature Acts
Amalgamated the common law courts, the Court of Chancery and other specialized courts into one.
Supreme Court of Judicature – consisted of the High Court and the Court of Appeal.
This almalgamation resulted in each level of court’s judge would have the right to apply statute law, the
common law or equity as the situation dictated.
When there was conflict between common law and equity, equity would prevail.
Factories Act workers’ compensation legislation and labour law
19 century Codified the practice of common law provisions in many areas of substantive law. Present
day example: Canadian Criminal Code
The Canadian Legal System
Despite the French defeat on the Plains of Abraham, people of Quebec resisted English law. 1774 –
affirmed that French civil law would continue in Quebec.
1931 – Statute of Westminster provided that no enactment of the Canadian Parliament could be rejected by
the English Parliament, nor would any English statute automatically extend to Canada
Rule of Law – legal principle adopted by Canada from Britain. Reflects the idea introduced by Aristotle
who distinguished between the government of laws and the government of men. The rule of law means
that no person is above the law and that there should be no arbitrary exercise of state power.
Application of Legal Theory
British had different impact on Canadian legal system than that of the United States.
Canadian legal institutions adopted the philosophical position proposed by John Austin called legal
positivism Chapter 1 09/10/2012
The US was founded on a revolution so they had to set up a legal system different than Britain’s but still
based on the same democratic principles.
They created a system that had three distinct bodies:
1. Office of the president
2. The congress
Olivier Wendell Holmes posited an approach toward law that became the rooth for legal theory now known
as American legal realism .
Realists asserted that what is law is determined by what the courts will enforce. If a law is written but no
court will enforce it, it is not a law.
Legal realists predict what will happen in the court room.
American judges feel less bound by prior decisions like positivist judges.
Canadian judges are appointed by a governing body but are not subjected to the kind of political scrutiny
that American judges are. The Legal Profession
“The first thing we do, let’s kill all the lawyers.” – William Shakespeare
“The legal perception has never enjoyed great popularity. This is no doubt because the lawyer is rarely the
supplier of anything pleasant…In civil litigation the loser generally regards his lawyer’s fee as the addition of
insult to injury.” – S.M. Waddams
Public Perception of Lawyers
• Leger poll 2004 Only 44% of Canadians trust lawyers
• Judges 75%, Nurses 95%, Firefighters 97%
• 14,000 complaints a year
• March 2009 – UK study 24% trust lawyers
U.S. 76% satisfied with lawyer hired
• Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession Philip
• Maclean’s Magazine
Regulation of Lawyers
• Self regulated
• Can be sued incompetence, breach of their duties, or criminal prosecutions for things such as fraud.
• Informal – ie by the market for legal services
• Monopoly on legal services in Canada
• Barristers and/or Solicitors – Canadian lawyers are barristers and soliciters
The Law Society
• Ontario – the Law Society of Upper Canada (LSUC)
• Convocation – governing body of law society
• Benchers – benchers are the name of the people on the governing body. Unpaid.
• Canadian Bar Association (CBA)
• 14 Law Societies in Canada – Quebec has two societies, one that governs lawyers and one for notaries The Legal Profession
• 300 staff LSUC
• Federation of Law Societies of Canada (FLSC) – 95,000 lawyers, 3,500 Notaries in Quebec
• National Committee on Accreditation (NCA)
• The Law Society of Upper Canada v. Boldt ,  O.J. No. 1142 (Ont. S.C.J.) Provided legal
services even though she wasn’t a lawyer. Court found her guilty, 4 months of house arrest, 35000$
Role of Lawyers
• Corporate law, taxation law, municipal law, bankruptcy, administrative law, real estate, estate and wills,
family law, labour and employment law, commercial litigation, intellectual property law including patents
and copyright, criminal law from either the perspective of the defence or Crown perspective which may
involve constitutional issues, immigration, landlord and tenant law, aboriginal law, sports law,
entertainment law and personal injury litigation to name some of the common specializations.
• More recently areas like environmental law and poverty law have emerged.
• Sole practitioners
A good legal education is worth understanding.
Legal advice for those who can’t afford a lawyer.
• Stats Canada – Canadian Centre for Justice Statistics
• Some availability for custody, personal injury
• $14,000 ($12,500 in Ontario)for an individual, or $27,000 for a family of four – poverty line is $19,000
• $80 per hour, or flat fee
Pro Bono Work
一 The CBA Code Chapter XI section 2 states that “it is in keeping with the best traditions of the legal
profession to reduce or waive a fee in cases of hardship or poverty, or where the client or
prospective client would otherwise effectively be deprived of legal advice or representation.” The Legal Profession
Becoming a Lawyer
• Undergrad degree in any program (at least 23 years)
• Grades – very least 80% average
o Top 2 years or top 20 courses
o Mature students, aboriginal students
Universities look at what you want to do with your law degree
LSAT – Law School Admission Test
Up to 78 hours in room
Average score around 160 for law school, ranges from a score of 120 to 180
Percentiles – percentage of candidates scoring below (and above) your score
LL.B. (Bachelors Degree in Law)
J.D. (Juris Doctor) graduate degree
LL.M. (Masters of Law)
10 months in Ontario
Bar exams – licensing process
Ontario – 2 exams
7 hours each.
Ontario Law Society Act, “it is a requirement for the issuance of every license under this Act that the
application be of good character.” – Law society of Canada v. Burgess, Sebastien Brousseau
Call to the Bar Ceremony The Legal Profession
Presented with the Degree of “BarristeratLaw” by the Law Society and
Court Certificate of Qualification
一 I accept the honour and privilege, duty and responsibility of practising law as a
barrister and solicitor in the Province of Ontario. I shall protect and defend the rights
and interests of such persons as may employ me. I shall conduct all cases
faithfully and to the best of my ability. I shall neglect no one’s interest and
shall faithfully serve and diligently represent the best interests of my client.
I shall not refuse causes of complaint reasonably founded, nor shall I promote suits upon frivolous
pretences. I shall not pervert the law to favour or prejudice any one, but in all things I shall
conduct myself honestly and with integrity and civility. I shall seek to ensure access to
justice and access to legal services. I shall seek to improve the administration
of justice. I shall champion the rule of law and safeguard the rights and
freedoms of all persons. I shall strictly observe and uphold the ethical standards that govern
my profession. All this I do swear or affirm to observe and perform to the best of my knowledge and
ability. Chapter 5 09/10/2012
• Judges search for truth and the provision for fair and just resolutions
• Make sure everyone has a fair hearing
Judges interpret statutes, apply common law and equitable principles, determine the extent of
protection in the CRF and determine constitutional validity of laws
• When there’s no jury, judges must determine the facts, not the law
Standard of Proof
• Judge must be convinced “beyond a reasonable doubt”
• Plaintiff must prove on the “balance of probabilities” that his position is correct
• Makes the first decision
• Hears complaints from litigants who believe that the lower court has made a mistake in law and that if it
had not been for this error the case would have been decided differently.
• Appellant and respondent
• Does not rehear case, only looks at alleged mistake
• Legal representatives participate, not plaintiff and defendant
Structure of the Courts
Constitution Act, 1867
• Granted provinces the right to make courts and deal with matters in their jurisdiction
• Authorized federal Parliament to establish a court of appeal for Canada
• Court of Queen’s Bench , Supreme Court, Divisional Court – superior trial court of the province –
depends which province you’re in Chapter 5 09/10/2012
Federal Court of Canada
• replaced Exchequer Court
• civil and criminal
• trial and appeal
• judges appointed by cabinet
Supreme Court of Canada
• Replaced Judicial Committee of the Privy Council
• 9 judges – 3 quebec, 3 ontario, 1 atlantic, 2 western
minimum of 5 justices on a case, most from the region where the crime originates
• opinion held by the majority of the judges is the decision
Lower Trial Level Courts
• Criminal, family, youth, civil & small claims
• Criminal operates under the Criminal Code
• Small claims – 10 grand or less
o Don’t need lawyer
Decision Making at the Trial Level
Judges don’t need to enforce the rules of evidence
• Judge acts as an arbitrator Chapter 5 09/10/2012
• Many options available in terms of the sentence that can be applied
• In family courts, judges rely on the advice of counsel, the reports of professionals dealing with the
family and pretrial mediation
• Court of Queen’s Bench, Supreme Court, Superior Court or Division court depending on the province
• All provinces have reconstructed their court systems by amalgamating their intermediate level or
country and district courts into the triallevel superior courts
Decision Making at the Superior Court Level
• Superior court judges have very limited discretionary powers
• They hear facts and listen to testimonies
• Precedent cases
To determine the law the judge must determine which precedent case is most relevant, this is called
distinguishing the case
• Judge prepares a report
• Every province in Canada has an appealsonly court.
• The highest court in which a litigant can be sure of a hearing is the provincial court of appeal because
supreme court of Canada can decline
• Do not generally rehear witnesses, testimonies, or accept new evidence
• They look for legal errors, if they find some they can send the case back for retrial
• Goal is to encourage parties to settle before trial
• The claimants can settle any time before the court renders its decision
• Regulated by procedural law
Writ of Summons Chapter 5 09/10/2012
• Lawyer issues writ of summons
• Order from the Crown informing the defendant that an action has been commenced by the plaintiff
• The writ of summons must be personally served on the defendant
Other Methods of Initiating Action
• Petition is another way of commencing an action
• Ontario abandoned the writ of summons, they use “a notice of action”
• There is a limited period of time in which an appearance must be filed with the court registry and a copy
served on the plaintiff once the writ/notice has been received by the defendant
• If no appearance is filed, the plaintiff can apply for default judgment.
Statement of Claim
Once the appearance is filed and served, the plaintiff must file a statement of claim, the first pleading
• Prepared by plaintiff’s lawyer
• Alleges facts and makes the claim which are the basis of the action
• All of the elements of the offence must be set out in this document
• If they’re not, the defendant can have the action quashed (end)
• Therefore the plaintiff tries to make the statement as broad as possible
Statement of Defence
• Prepared by defendant’s lawyer
• Specific response to each allegation set out in the statement of claim
• Statement of facts as understood by the defendant
Demand for Further Information
• If one of the parties feel that the pleadings are not detailed enough, a demand for particulars can be
served on the other party Chapter 5 09/10/2012
• This process can go on for a while until they have a clear understanding of the position of the other,
• Then the pleading is over
• Before the trial, if the parties find themselves in dispute with each other an application can be brought
to the court to have the matter settled.
• Less formal than the actual trial
• Discovery of documents ensure all important documents are in the possession of either party
• Important documents relevant to the case must be made available
• Eliminates surprise at trial
• The parties are required to answer any questions asked that are in any way relevant to the matter being
• If they lie, it is under oath and then he must admit to lying
• If they make a damaging submission it encourages him to settle the matter before going to trial
• Often takes years to bring a civil matter to trial
• Parties often persuaded to settle their differences before the matter goes to trial
• Final step in pretrial process
• Held before a judge in which the laqyers appear and explain the nature of the dispute and why a
settlement cannot be reached
Payment into Court
• Person who loses must be court costs, including legal expenses of the successful party.
• Usually the actual amount charged will be higher than this fee
• If the defendant thinks the amount requested is too high, they can pay the amount they see fit before
the matter goes to trial Chapter 5 09/10/2012
• If the plaintiff loses, they have to pay defendant’s expenses
• Court clerk reads off names
• Motion may be made my lawyers, perhaps for adjournment
• Plaintiff counsel makes an opening statement which he summarizes the nature of the claim
• Plaintiff calls witnesses, extracting evidence
• Rules of evidence govern the types of questions that can be asked
• direct examination – lawyer questions his own witness, not allowed to ask leading question
• Defense lawyer then crossexamines
• If other lawyer feels vital info has been omitted, he they can make a motion for dismissal
• If the judge feels some vital point has been left out, the judge must dismiss the action
• Defence can ring insufficient evidence notion if the defence lawyer believes that the judge could decide
in the plaintif’s favour but that the case is very week
• Defence can then call their witnesses
• Summary of facts
• Voir Dire – when there is a jury and there is questionable evidence that the lawyers are arguing about
whether or not it ought to be displayed, the jury is asked to step aside and the judge looks at it in their
• Lawyer directs argument to jury
• Judge helps them understand the case and summarizes the legal issues
• Jury is rare in civil case – usually in personal injury case – juries award huge damages
In civil or criminal, jury decides questions of fact, not law
Questions of fact deal with events giving rise to the complaint
It’s up to the judge to deal with questions of law
• If jury case, they leave and return with decision Chapter 5 09/10/2012
• If judge case, the judge will often reserve judgment (take time to make decision) – the judge usually
gives decision at another date
• In civil many different remedies can apply
• An order by the court that one party pay monetary compensation to the other
• Special Damages – ordered by the court to compensate for specific, accountable expenses, such
as wages actually lost and cost of medication
• General Damages – compensate for losses that cannot be specifically accounted for, such as pain
and suffering and loss of future wages
o Specific Performance – when a person is ordered to perform as required by a contract
o Punitive Damages – designed to punish the wrongdoer rather than compensate the victim
o Declaratory judgment – declare law, even though there may be no order accompanying
Small Claims Courts
o Amount being contested is under 10000
o Pleadings and examination for discovery are dispensed with
o Judge is more active to make sure all the info comes out
o Not usually lawyers
o Decision made on the spot
o If either party is dissatisfied with the decision they have the right to appeal
o Judge may have made an error or evidence should not have been admitted
o Question of law
o Usually deal with by the provincial Court of Appeal
o If the appealed trial is from the small claims level of the Provincial Court, the appeal might go to the
Supreme Court, in Ontario, the Division Court which is a section of the General Division of the Ontario
Need to make an appeal book
o Factum – sets out statement of the facts, the issues, arguments, understanding of law upon which the
complaint is based, and references to relevant cases and statutes. Chapter 5 09/10/2012
o 1, 3, or 5 judges on appeal
o can appeal after if they’re not having with the appeal court’s decision
o if defendant is losing party they’re refered to as judgment debtor
o if they refuse to comply plaintiff must take steps to enforce judgment
o when debtor can’t pay – dry judgment
Examination in Aid of Execution
o if a debtor cannot honour the court order they won’t be jailed, butrefuse.an be if they
Other Remedies and Limitations
o Garnishment – seizure of money from bank accounts and wages in order to pay a debt
o Only a portion of a person’s wages can be garnished
o if real property is involved, the judgment is registed with land registry district – if debt is not paid it can
be enforced that the property be sold
o Cars, stereos, and household articles and personal possessions can all be seized to satisfy the
o OntarioCreditor’s Relief Actuts a limit on what can be seized
o When this happens, it is normally performed for a fee by government officials
o Interest must be paid by the judgment debtor on the amount owing
o When taking a person judgment and enforcing it it can be expensive
o Even though the loser pays the costs of the winner, it’s usually not enough for all of the legal expenses
o Also the problem of if the person has enough assets to pay
o If a person chooses to delay suing there is a risk that the limitation period might pass
o A person with a civil claim has to launch a court action by issuing the writ within a time period – issued
not served Chapter 5 09/10/2012
o The debtor can get out by declaring bankruptcy
o Assignment in bankruptcy – debtor voluntarily assigns personl assets to a trustee
o Receiving order – application is brought to the court by the creditors to forcibly convey the
assets to a trustee
o Trustee then gets as much money as possible out of the assets
o Certain assets are exempt such as bedding, specified furniture, and food
o Debtor can apply for a discharge of bankruptcy
o No debts can then be held against him, even if he wins the lottery
o In a criminal matter, the Crown is one of the parties
o To protect accused, court is separate from government
o Judges & lawyers
o Barrister – lawyers who represent their clients in court
o Solicitor lawyers who undertake the paperwork required by the legal system
o Notaries public – offer legal service but they are independent of the legal profession – not
o Employees in law offices that help lawyers
o Legal secretaries– secretaries that specialize in services required to assist lawyers in preparing
and filing documents
o Articling Clerk law student working legal firm before being called to the bar
o Private companies offering services to lawyers title search companies register and search
documentation for real estate transactions
o Justices of the peace – swearing out information forms, laying charges, taking oaths Chapter 5 09/10/2012
o Clerical and administrative personnel
o Court registrar – schedules cases
o Court clerk who collects and stamps documents
o Court reporter – writing down everything that happens
o Police officer
o Must be members of bar association in the province
o L.L.B > articling student > bar exams
Lawyers must avoid conflicts of interest Rules of Professional Conduct 09/10/2012
• Canadian Bar Association (CBA) – tries to improve the law
o Last division modified in 2009
o Each province can make specific rules
o Should lawyers be able to selfregulate?
• ttp://www.cba.org/CBA/about/mai /
• “informed by the ethics and etiquette of a gentleman”
LSUC Rules of Professional Conduct
6 Rules of Conduct
a. A lawyer has a duty to carry on the practice of law and discharge all
– responsibilities to clients, tribunals, the public, and other legal practitioners honourably and
b. a lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the
important role it plays in a free and democratic society . . .a special responsibility to recognize the
diversity of the Ontario community, to protect the dignity of individuals, and to respect human . . .
c. the rules are intended to express to the profession and to the public the high ethical ideals of the
d. rules of professional conduct cannot address every situation, and a lawyer should observe the rules in
the spirit as well as in the letter.
Rule 4 – Administration of Justice
4. The relationship to the administration of justice, other lawyers and the court
– 4.01 (1) When acting as an advocate, a lawyer shall represent the client resolutely and honourably
within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.
– A lawyer must not bring actions solely to delay or harass the other party, which would bring the
administration of justice into disrepute.
Rule 2 – Competence
If you get a criminal lawyer you expect them to understand criminal law and give you the best defence
possible. Rules of Professional Conduct 09/10/2012
• 2.01 COMPETENCE
• knowing general legal principles and procedures and the substantive law and procedure for the areas
of law in which the lawyer practices.
(1) provides that “when acting as an advocate, a lawyer shall represent the client resolutely and
honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and
• lawyer has a duty to the client to raise fearlessly every issue, advance every argument, and ask every
question, however distasteful, which the lawyer thinks will help the client's case and to endeavour to
obtain for the client the benefit of every remedy and defence authorized by law.”
Rule 2 – Confidentiality
• A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of
the client acquired in the course of the professional relationship and shall not divulge any such
information unless expressly or impliedly authorized by the client or required by law to do so.
• The duty is very broad and can include all conversations, identity of client, and daytoday information
• A breach of confidence can lead to disciplinary hearings for the lawyer, a civil law suit and/or a report to
the Law society that they have ineffective counsel.
In Ontario, rule 6.03 specifically addresses mistakes and says that a “lawyer shsharp practice
and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part
of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights.”
Szarf er v Chodos
• Lawyer found out the client (szarfer) had erectile disfunction, szarfer’s wife worked for the lawyer at one
pont, then chodos slept with her. He used confidential information disclosed by his client in trust to his
own benefit. Court ordered Chodos to pay 43000 to szarfer.
Exceptions to Confidentiality Rule 2 – Permitted Disclosure
• 2.03 – When required by law or by order of a tribunal of competent jurisdiction, a lawyer shall disclose
confidential information, but the lawyer shall not disclose more information than is required.
o Imminent risk to identifiable person or group.
o Future harm – Smith v. Jones Rules of Professional Conduct 09/10/2012
Jones was charged with aggravated assault to smith. Goes to psychiatrist, tells
psychiatrist how hes going to go kill a prostitute, dr smith called jones’ lawyer and tells
him he thinks he’s a dangerous person.
Was there a clear risk? Was there a risk of serious bodily harm or death? Is
the danger imminent?
2.03 provides that:
Where a lawyer believes upon reasonable grounds that there is an imminent risk to an identifiable person or
group of death or serious bodily harm, including serious psychological harm that substantially interferes
with health or wellbeing, the lawyer may disclose, pursuant to judicial order where practicable, confidential
information where it is necessary to do so in order to prevent the death or harm, but shall not disclose more
information than is required.
Does a Lawyer have to Represent Every Client?
• Fiduciary relationship
o Lawyers have some discretion but not much, they have to have a good reason not to take a
1. Conflict of Interest 2.04 states that: A “conflict of interest” means an interest:
o that would be likely to affect adversely a lawyer’s judgment on behalf of, or loyalty to, a client or
prospective client, or
o that a lawyer might be prompted to prefer to the interests of a client or prospective client.
2. Potential to be a Witness
3. Client Already has a Lawyer – until retainer agreement has been terminated with another lawyer you
can’t take on a client
4. Illegality – don’t take on case if you’ve been asked to do something that’s illegal.
Rule 3 – Practice of Law
Making Services Available
• 3.01 – Lawyers shall make legal services available to the public in an efficient and convenient way
• Cannot typically refuse a client based on race, language, national or ethnic origin, colour, religion, age,
sex, sexual orientation, marital status, family status or disability
• A lawyer may market legal services if the marketing
o Is demonstrably true, accurate and verifiable
o Is neither misleading, confusing or deceptive, nor likely to mislead, confuse or deceive and Rules of Professional Conduct 09/10/2012
o Is in the best interests of the public and is consistent with a high standard or professionalism
“We know everything. We can do Anything. We stop at Nothing.”
• “Accidents happen… But don’t let your choice of lawyers be one of them.”
• “Lawyers you’ll swear by. Not at.”
• “All We Do is Work”
• “Life’s Short. Get a Divorce”
Termination of the ClientLawyer Relationship
• acted in dishonourable way, or there is a serious confidence between the parties
• Must give back all documentation and property to the client or their new lawyer, disclose all relevant
information, account for all outstanding fees, and cooperate with the subsequent legal counsel
• Discharged by the client
• The lawyer is instructed by the client to do something inconsistent with the lawyer’s duty to the tribunal
and, following explanation, the client persists in such instructions
• The client is guilty of dishonourable conduct in the proceedings or is taking aposistion solely to harass
or maliciously injure another
• It becomes clear the the lawyer’s continued employment will lead to a breach of these rules
o The lawyer is required to do so pursuant to subrules 2.02 or 5.2 (dishonesty, fraud, etc.)
• The lawyer is not competent to handle the matter
Ontario under s.33 of the Law Society Act – a “licensee shall not engage in professional misconduct or
conduct unbecoming of a licensee”
1. A revocation of the lawyer’s licence
2. An order requiring the lawyer to surrender his or her licence
3. An order suspending the lawyer’s licence for a definite period
until terms and conditions are satisfied, or
both a definite term and when conditions are met.
4. A fine of not more than $10,000, payable to the Law Society;
5. An order that the lawyer obtain or continue treatment or counselling, including testing and treatment for
addiction to or excessive use of alcohol or drugs, or participate in other programs to improve his or her
health; Rules of Professional Conduct 09/10/2012
6. 6. An order that the lawyer participate in specified programs of legal education or professional training;
7. An order restricting the areas of law that the lawyer can practice in;
8. An order restricting legal services;
9. An order that the lawyer cooperate in a review of the lawyer’s business;
10. An order requiring the lawyer to refund to a client all or a portion of the fees paid;
11. An order that the lawyer be reprimanded; or
12. Any other order that the Hearing Panel considers appropriate.
Disbarment: a termination of a membership in the law society. A lawyer’s name is taken from the list of
barristers and solicitors in the province.
Adams v. Law Society of Alberta
Lawyer slept with a sixteen year old prostitute and was disbarred because his honour was tarnished for
sleeping with a prostitute.
Disbarment, Suspension & Reprimand
B.J. 2004 – lawyer’s licence is revoked
F (1973) – suspension ordered by the Hearing Panel
H (1973) – licence is suspended on an interim interlocutory basis
S (1982) – lawyer shall be reprimanded – under appeal by the lawyer.
Role of Judges
It is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself
lest by so doing he appeared to favour one side or the other . . . The judge’s part in all this is to hearken to
the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has
been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules
laid down by the law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention
that he follows the points that the advocates are making and can assess their worth; and at the end to
make up his mind where the truth lies. If he goes beyond this, he drops the matter of a judge and assumes
the role of an advocate; and the change does not become him well. Lord Denning, R. v. Perrigo (1972),
10 C.C.C. (2d) 336 (Ont. Dist. Ct.)
Third arm of the government
Uphold the constitution
Canadian adversarial system, the judge does not take an interventionist role
Maintain impartiality Rules of Professional Conduct 09/10/2012
Decide what principles are given to the jury tdeliberate (consier on the basis of all the available
evidence and admissible evidence) upon.
Until 1971, there was no formal training – 1974, seminars,
1987 the Ntational Judicial Institute was established in Ottawa to provide more voluntary judicial education
Private Chamber – entrances from a separate exit
Your Honour/Your Worship
Contempt of court – disrespect for the rules of a court of law
Independence, job security, and financial security
Supreme Court of Canada
Supreme Court Act R.S.C 1985
Prime Minister assistance from the minister of justice and nominees face three hours of questions from an
allparty committee of the House of Commons
Professional capacity including their knowledge of the law, personal characteristics like integrity and
patience, and diversity
Can be a judge until 75 years of age “during good behaviour” unless they decide to retire earlier
three must be from Quebec, usually three from Ontario (by convention) two from the West and one from the
Governor General dies or is incapacitated, the Chief Justice is the Administrator of Canada and has the
powers of the Governor General
79 judges, as few as 5
Provincial Superior Court Justices, Federal Court Justices and Justices of the Supreme Court of Canada
are usually addressed as Mr. Justice Smith or Madam Justice Smith, and in court they are traditionally
addressed as “My Lady” or “My Lord,”
Written Smith J. (or Smith J.A. in the court of appeal, provincial chief justices are Smith C.J.O, or Smith
C.J.A. etc where the last letter is the province, and Smith C.J.C. for the Chief Justice of the Supreme
Who is Eligible?
In good standing with their law society (not disbarred or suspended) in one of the Canadian provinces or
Superior Court judges are appointed by the Canadian government, and the inferior court judges are
appointed by the provincial government.
Ontario, Saskatchewan, Quebec, New Brunswick, Newfoundland, and the Yukon are among the provinces
and territories that require at least 10 years experience as a lawyer before they become a judge. Rules of Professional Conduct 09/10/2012
The Northwest Territories requires at least 7 years
Alberta, B.C., Manitoba, Nova Scotia, and PEI require at least 5 years experience.
Saskatchewan, Manitoba, Quebec, and the Yukon also provide that one may be appointed with “pertinent
Judge – Investigation
First judicial council formed in Ontario
investigated for complaints by the Canadian Judicial Council (CJC) and can be reprimanded and even
removed from the bench for serious breaches of conduct.
unethical behaviour, incapacity because of permanent disability, and incompetence
recommendations to Parliament or the provincial government about whether a judge should be removed
from the bench or disciplined
Judicial misconduct is the most serious task of the CJC, and they have investigated judges for “apparent
bias (for example, sexist or racist comments during the trial, or taking a political stand off the bench),
inappropriate conduct (especially towards court staff), and conflicts of interest.”
Justice Paul Cosgrove
Ontario superior court justice, investigated of the mishandling of a 1998 murder trial. He made serious legal
errors in the case and there was misconduct. CJC recommended he be removed from the bench because
he didn’t realize the effect he had on the murder victim’s family.
Justice Lori Douglas – nudy pics Civil Litigation Continued 09/10/2012
Case Law : the decisions of judges as opposed to statute law. These judgments form the source of law
and legal precedent.
• The words wheretofore, heretofore, are dead
• Case law has distinguished transcripts.
• Oliver Wendel Holmes wrote “common law is not a brooding omnipresence in the sky.
Important Legal Terms
• A decided case that provides the basis for decisions for later cases based on the same, or similar facts
o Case at hand – also known as case at bar, refers to the matter that’s under consideration at
• Stare decisis – “stand by decided matters”
o Stability, consistency and predictability
Distinguishing the case – to show that a particular case (or series of cases) has a factual, procedural,
or legal differences is an ART. Battle of the precedents.
Level of court matters, the higher the court level the more influential the decision in precedence.
Ratio Decidendi – “root of the decision”
Principle upon which the case is decided
Reputation of judge influences the weight of the decision, one judge’s ratio may be more influential than
Root of the decision is one paragraph, or one sentence, or one phrase
Obiter Dicta – words in passing
Comments made b a judge in the course of making a decision in a case
R v. Sellers – obiter from majority of Supreme Court – binding on lower court in certain circumstances
Res Judicata – “A matter adjudicated”
You know if you cross the boarder with illegal drugs you’re going to go to jail.
Decide a particular case
Judge has to establish legal principle for the future Civil Litigation Continued 09/10/2012
• Advantages of following precedent
• Disadvantage:Supreme Court has power of overriding precedent decisions – some say this gives them
too much power
• Law Reports – Quicklaw, eCarswell, and Westlaw
o Sometimes the reading is incomprehensible. Some judges are much better writers than
o “Case reporters “or just “reporters”
• Supreme Court Reporters
• The Dominion Law Reports
o Summary of the facts, the issues, and the decision in the case
o Not always accurate
o Judge did not write headnote
Precise reference for cataloguing at the beginning of a case
R. v. McCrow,  3 S.C.R. 72 (S.C.C.)
READING CASE LAW – CIVIL LAW
• Parties to a civil action are the plaintiff and the defendant at the trial level
• Appellant and respondent on appeal
Order = application and respondent
• Divorce = petitioner and respondent
• Smith v. Jones ITALICS Civil Litigation Continued 09/10/2012
Format of a Written Case
• Style of Cause – name of case ie) Stergios v. Kim
• Parties – Shaun James Stergios, Appellant, and Eun Ju Kim, Respondent
Citation –  O.J. No. 3299 ||| (next line) 2010 ONSC 4195
• Court File # Court File No. 2016904
• Court – the court name
• Judge – the judge name
• Trial – Heard: October 23 2008; January 1215, 20, 22, and July 23, 2009
• Decision – Judgment: July 28, 2010
Case Brief Tips
• Legal Dictionary – Dictionary of Canadian Law by Kilow or the Canadian Law Dictionary by Yogis
• Also see the UW Library and their ereferences under “Online Reference Shelf” on the home page.
• Know the court structure and where this case fits
• Make a list o the parties
• Multiple judgments?
• Read the case more than once
• Sort out the facts – Relevant Facts
• Legal Issues
• Obiter dicta worth mentioning?
o Flaws or gaps in the reasoning?
Elements of a Case Brief
Example Motherwell v. Motherwell
• Case Name, Citiation, the States of Each of the Parties, Judges (each that heard the matter, and
particular who wrote the decision) Civil Litigation Continued 09/10/2012
• You are only looking for the material or essential facts. What facts did the court consider? Was there
something that the court focused on in the reasons?
Elizabath Motherwell repeatedly harassed her father, brother and sisterinlaw over the telephone
• She sent them numerous abusive letters
• Elizabeth refused to cease making such allegations and false statements. She called her 90 eyar old
father up to 12 times a day…
• When you are looking for what happened in the prior proceedings and what the parties are requesting –
look for statements like this:
• “The appellant seeks a finding that the lower court accpepted inadmissible evidence
• “The appellant states that the trial court erred in finding there was no cause of action because”
• “The Respondent seeks an affirmation of the trial decision that”
• The issues cannot be dissociated from the facts of the case and are inextricably bound to each other.
Appellant and Respondent Arguments
• Thinks “She has an inalienable right to lawfully communicate with and visit her father”
• The ratio is one of the most difficult things to find. Leave this statement until the end when you have
completed each of the other parts.
• Judge found that the brother and the father have established a claim in the nuisance by invasion of
privacy through abuse of the system of telephone communications.
Reasons for Judgment
• Phone calls were found to be an unreasonable interferences with the family’s use and enjoyment of
their homes and was a private nuisance.
• Look for statements such as “judgment for the appellant” “appeal allowed” Civil Litigation Continued 09/10/2012
• Appeal dismissed –
• Three levels of government in Canada; the federal, provincial, and municipal.
• The Canadian House of Commons and the legislative assemblies of the provinces and territories draft
• It is not only parliament that makes laws, but powers are also “delegated” to other authorities to make
regulations to fulfill the goals of their governing legislation.
• The legislation may allow the GovernorGeneral, the LieutenantGovernor, or a Minister, board,
commission or tribunal to make laws called regulations
o a rule of conduct by a law making authority which has the force of the law.
o ultra vires , “beyond the power of the body”
Legislation must be promulgated
Federal and provincial/territorial gazettes in which official notices are posted, announcements of
Federal Canada Gazette http ://www.gazette.gc.ca / Ontario Gazette
http ://www.ontariogazette.gov.on.ca /)
Statutes of Canada (S.C.),Statutes of Saskatchewan (S.S.) + year published
Compilations Revised Statutes of Canada , 1985 (R.S.C. 1985)
Revised Statutes of Ontario (R.S.O.)
Revised Regulations of Ontario can be cited as (R.R.O. 1990).
• No contradictory provisions, there should not be a conflict of laws at the municipal, provincial, federal
levels and perhaps the international level, it should not make demands that are not possible to comply
with, and they should stand the test of time.
• Judges important
• Interpretation Act, R.S.C. 1985, c. I21 (or provinces)
o Ontario’s Interpretation Act, R.S.O. 1990, c. I11
1. Literal Rule (Plain or Ordinary Meaning Rule) Civil Litigation Continued 09/10/2012
• if the words in a piece of legislation are clear and unambiguous they must be given their ordinary
meaning, and grammatical and normal punctuation rules apply.
• No other context
• A judge cannot usurp that function
• R. v. Harris (1836)
o Bit off a man’s finger > teeth are not a weapon therefore she can’t be acquitted
2. The Absurdity Rule (or the Golden Rule)
the normal meaning of the legislation should be used unless this reading would result in an absurdity.
A judge is allowed to move from the literal meaning only as much as necessary to remove the conflict.
SkokeGraham v. R .,  1 S.C.R. 513 (S.C.C.).
Kneeling to serve communion which broke the church protocol, the criminal code said it’s a criminal offence
the disturb religious meaning, the court rejected that ordinary meaning and said it would have an absurd
3. The “Mischief” or Purposive Analysis Rule
To do this they can look to the language of the Act (perhaps in the preamble to the statute) or the
Hansard or legislative committee reports.
Looks at what the legislators were trying to cure
Words in question used in prior cases?
4. Contextual Analysis Rule
Look at the act as a whole
legislators had a goal and plan for the legislation, their choice of words was done for a reason, and that all
of the words are there for a reason.
5. The Plausible Meaning Rule
Depart from the ordinary meaning of a statute only if there is a more plausible meaning to the words Civil Litigation Continued 09/10/2012
normally not be able to add or delete words or change the intent
change drafting errors in legislation if the court is confident that they know the intent of the drafters
6. The Modern Rule of Interpretation
Many of the characteristics of the other rules into one approach
read grammatically and in an ordinary meaning,
the context of the legislation, and
the intent of Parliament.
Includes the literal rule in that the plain meaning is to be examined,
the mischief rule in that the purpose of the law is to be ascertained,
the absurdity rule in the inclusion of context, and
the possibility of drawing on the wider contextual analysis and the
plausible meaning rules
The Role of Legislation and Case Law in a Judicial Decision Summary
o Partnership case law and legislation.
o evolve with the times, but there is always the option of legislators to introduce new statutes
1. Is there a statute that applies? If yes – apply it with the plain meaning, and then add other statutory
interpretation tools (absurdity rule etc.) if need be;
2. Is there a case that addresses this situation? If yes – apply that case.
However, can those cases be distinguished from the case at hand? Are the facts materially different than
the case at hand? What will be the impact of establishing this principle as precedent?
o pages 11011 and 118126 give you a general sense of the civil law system.
o Good lawyer will not automatically start a civil action
o Out of court settlement Civil Litigation Continued 09/10/2012
o 9099% end in default judgment or abandonment without ever going to trial
o Complex rules
o Courts of justice act,, and the gulations undr the rules of ivil procedure
Small claims, Family Court, Court of Appeal
Superior Court of Justice
4 main stages
• Basic – 2 parties,
o Originating process – notice of action
Court house to register
• Issuing the document
Service served in person or by mail
Time to respond
Statement of Claim
Just the facts
Not arguments Civil Litigation Continued 09/10/2012
Statement of Defence
Counter claim – defendant makes counter claim against plaintiff
Affidavit of documents
Examination for discovery
Oath or affirmation
Take it under advisement
o Testimony under oath
o Rules of civil procedure
o Balance of probabilities
o Liable or legally responsible
o Plaintiff has the burden of providing that the judge/jury should accept their version
o Section 108 of the ontairo courts of justice act provides that in an “action in the Superior Court of
Justice that is not in the Small Claims Court, a party may require that the issues of fact be tried or the
dmaages assessed, or both, by a jury, unless otherwise provided.” Thus, any Superior Court of Justice
Trial may be heard by a judge and jury
o Special Damages – tangible
o General damages – less clear
o Thorton v Prime George School District
o Punitive damages – denunciation
Aggravated damages Civil Litigation 09/10/2012
Introduction Civil Litigation 09/10/2012
• Contract law
• Torts law
• Family law
• Administrative law
• Property disputes, corporate law, environmental law, mediation, commercial law, estate law, sports law,
immigration and refugee claims but can also encompass things as diverse as the inquiry into the
tainted blood scandal.
• Rule of law – Aristotle – no one is above the law
• Equal justice under the law
• Parliamentary supremacy – Charles I tried to rule alone – like cases treated alike.,
• A lot of people say US judges are a lot more like activists.
Hierarchy of the Courts Civil Litigation 09/10/2012
Supreme Court of Canada (9) > Court of Appeal (3) > Supreior Court of Justice (1) Provincial
Courts of first instance
Superior Court of Justice for Ontario
Court of Queen’s Bench
Federal Court system
Immigration law, patent law, copyright law and tax law.
Trial, appeal, supreme court
Judge or a judge and jury
Juries Act R.S.O. 1990, c. C.43. someone can be on a jury if he:
(a) resides in Ontario;
(b) is a Canadian citizen; and
(c) in the year preceding the year for which the jury is selected had attained the age of eighteen years
is eligible and liable to serve as a juror on juries in the Superior Court of Justice in the county in which he or
68 members (unlike the twelve members in a criminal trial)
Decision can be made with a majority of the civil jury.
o Medical practitioners;
o Judges; and,
Court of Appeal for each of the provinces and territories and the Supreme Court Canada
Panel of three
Majority and Minority if a split
Common law, civil law, and the Federal Court of Appeal
Used to be the Privy Council Civil Litigation 09/10/2012
Often referred to as the court of “Last resort”
Leave to appeal
Supreme Court Judges
Back Row: The Honourable Mr. Justice Marshall Rothstein, the Honourable Madam
Justice Rosalie Silberman Abella, the Honourable Madam Justice Louise Charron, and
the Honourable Mr. Justice Thomas A. Cromwell.
Front Row: The Honourable Madam Justice Marie Deschamps, the Honourable Mr.
Justice William Ian Corneil Binnie, the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada, the Honourable Mr. Justice Louis LeBel, and the Honourable
Mr. Justice Morris J. Fish.
***FIND RECENT PICTURE OF SUPREME COURT JUDGES, WHO WAS MOST
RECENT?*** Justice Richard Wagner October 5 2012 Civil Litigation 09/10/2012
Supreme Court of Canada Today
How do you address the judges of the Supreme Court?
Superior courts – Provincial superior courts, federal courts and Supreme Court of Canada = Mr.
Justice Smith or Madam Justice Smith
In court refer to them as “My Lady” “My Lord”, in writing as Smith J. (or Smith J.A. in the court of appeal),
Orally as The Honourable Mr. (or Madam) Justice A. Smith.
Your Honour or Your Worship?
Binding and Persuasive
Bind (binding): a decision of a higher court which a must follow.
Persuasive: a case that should be given respect and may be followed, but it is not binding.
Hierarchy of the Courts
Higher courts can bind lower courts in the same geographical region lower courts are bound to follow
Nova Scotia Supreme Court is bound by a case from the Nova Scotia Court of Appeal
Decisions same level – persuasive
Ontario Superior Court of Justice and Saskatchewan Court of Queen’s Bench
Other geographic location – same level = persuasive
Court of Appeal for Saskatchewan and the Court of Appeal for New Brunswick.
Supreme Court binding all
United Kingdom – not binding but persuasive
United States – persuasive
Specific Weight to a Decision
Series of cases
Started a new precedent
Quickly changing area of law
Did not consider right things exam 09/10/2012
Multiple choice, true and false, short essay answer.
Short essay – proper sentence form
Thinking questions – apply terms
Chapters 1,2,5 Chapter 2 09/10/2012
Laws Set a Minimum Standard
• Serves to order personal, social and commercial relationships and even control private behaviours
• Has an impact on most aspects of human life
Provides a predictable guide and limit to our actions.
• Courts only intervene when there has been a suspected violation of a law or in order to determine the
nature of rights and obligations between parties
• Judges hear and way evidence, determine which laws apply to the case and then make decision that
favour one of the sides in an action
• Decision must not be arbitrary
• Very few instances where judge can use discretion.
• Every court in Canada is first required to dermine if there is a statute in place that affects the case
• If there isn’t then the judge looks to the common law and principles of equity to find a precedent.
Selecting the most appropriate case is called “distinguishing the case.
• Statute law takes priority over case law
The Common Law
• In creating common law judges borrowed from many different sources, each source having a distinctive
influence on the nature of the law
• Common law is best understood as a product of its history rather than as a reflection of any kind of
rational or logically cohesive process.
• General Customs – general customs of ancient England became part of common law through
judges’ decisions. Those decisions became precedents that were binding.
• General Customs are no longer a source of law because they have long since been embodied in
precedent cases or overridden
• Specific customs are usually limited to a particular geographical location or to a particular
profession or trade. Ie) use of an old dock, the use of water from a particular source
• The custom cannot be in conflict with either common law or statute.
• Some of the customs of Native peoples in Canadian history are now finding their way into common law;
ie property rights.
Roman Influence Chapter 2 09/10/2012
• Common law judges borrowed from Roman civil law, cannon, or church, law, and the Law Merchant
developed by the mechant guilds in Europe.
• Roman law was taught at English universities which is why it had influence
Mercantile and Maritime Law
• Body of rules created by merchants
• Traders banded together in organizations called merchant guilds.
• Because they travelled through Europe a common system of rules to govern their activities was
• The customs of the merchants were adopted by common law, but as these customs developed,
common law was also able to adapt.
• The Marine Insurance Act, Bills of Exchange Act, Sale of Goods Act
The Doctrine of Following Precedent
Predictability is one of the main requirements of a legal system
• This enecourages parties to settle dispute between themselves
• Following precedent ensures that the law remains certain and predictable
• Stare decisis – to stand by the decided case
• Even if te decision being presented to the court as a binding precedent is clearly sound law, the judge
has some tools to avoid applying it where he or she does not wish to
• Only the ratio decidendi (the rooth of the decision) is binding as precedent.
• The ratio decidendi, or binding part of the judgment on subsequent courts, I the opinion of the judge or
the legal principle upon which the decision is based.
• In many judgments there are comments or asides made by a judge that are not directly associated with
the actual decision or that are unnecessary to the reasoning.
• Obiter Dicta – words in passing
• They are not binding.
Examle: a judge will suggest what might have happened had the facts been different. 09/10/2012
Definition of a Tort
• Latin termtortus” – twisted or curved – French word for injustice or wrong
• Civil law wrongs not criminal
o One person commits against another resulting in damages
• Bodily integrity, dignity, property or livelihood
• Person who causes the harm must compensate the victim
• Negligence or unintentional torts
• Intentional torts
o Within distinct categories of wrongs
• Civil law = private law
o Involves actions of parties that are not of interest to the rest of society, simply compensates
• Ratych v. Bloomer , the purpose of tort law is to “restore the injured person . . . to the position he
enjoyed prior to the injury, rather than to punish the tortfeasor whose only wrong may have been a
moment of inadvertence.”
Basic Principles of Tort Law
• Plaintiff and Defendant
• Seek compensation
• Balance of probabilities – lesser standard of proof that criminal
• Some – governed by statute
o Property law separate class of civil actions
• One action can give rise to a tort action, an equitable remedy, breach of contract and criminal charges
• Cause of action
• Generally – intentional act, negligence, wrongful on surface, and some special torts
• Who to sue?
Difference Between Crime & Tort
• Criminal – threat to society (public or state) 09/10/2012
o Crime against state
o Punish criminal and incapacitate, deter, rehabilitation
o Victims are ignored – witnesses
o Focus on the offender
Crimes v. Tort
• Civil – object is to compensate victims for negligence or acts between 2Jones v. Smith )
[Plaintiff v. (Tortfeasor) Defendant]
• Financed by the person wronged (unlike criminal)
• Overlap – torts and crimes
Assaulted with baseball bat
• Break into someone’s property
• Pursue both?
o O.J. Simpson
Crime & Tort
• Standard of proof
o Beyond a reasonable doubt
o Balance of probabilities
• Chances are if you’re found guilty in criminal you’ll be found guilty in civil but if you’re not found guilty in
criminal it’s possible you won’t be sued in civil.
• Finding of responsibility in a civil trial = in a criminal trial
• Finding of guilty in a criminal court = in a civil trial
Categories of Liability in Tort
• There are 4 general categories of tort: 09/10/2012
• a. Negligence;
• b. Strict Liability;
• c. Intentional Torts; and
• d. Other Unique Torts
• The failure to take reasonable care to prevent foreseeable harm to another
o The tortfeasor’s relationship with the victim
Historically “apothecaries, surgeons, common carriers, and innkeepers, who were alleged to
have breached the standards of customary practice.”
Inadvertent rather than wilful or deliberate
o Conduct that falls below a standard of behaviour that society considers acceptable,
• Donoghue v. Stevenson Lord Atkin said that a person you owe a duty of care to your
o becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my
neighbour? receives a restricted reply. You must take reasonable care to avoid
acts or omissions which you can reasonably foresee would be likely to
injure your neighbour. Who, then, in law is my neighbour? The answer seems to be
persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I
am directing my mind to the acts or omissions which are called in
• Concept continues today – duty of care to others
• Fail to do what a reasonable person would have done in the standards of the community
• The standard of conduct expected is quite high.
• Overwhelming number of actions in civil court deal with negligence
Conditions for Negligence Torts
7 elements that must be present for a negligence suit to be successful:
• duty of care,
• standard of care,
• breach of that care,
• injury and causation, 09/10/2012
• contributory negligence and
• liability and damages.
Duty of Care
7 Conditions for a tort to be successful
• Duty of Care
• Did the Defendant owe a duty to the Plaintiff?
o People are responsible for their inadvertent conduct when they anticipate that their conduct
may cause injury to others,
o To maintain a st