MOS2276 Lecture 1
Responsible for cases listed in the table of cases!
Learning the Law from cases
In law, don’t rely on secondary sources and read the cases ourselves. (12:58)
Why do we focus so much on the cases?
Large part of law comes from precedent
Precedent: We treat similar cases in a similar way.
• Fairness ▯intuitive sense of fairness, treat everyone the same way
• Efficient ▯if know the result, just execute (group cases together)
• Certainty/predictability ▯knows how to deal with the situation because of strong sense of outcome
• Two cases are never the same, where’s the line?
• Sometimes when group cases together, don’t pay enough attention to details of the case
o When striving for efficiency, usually sacrifice accuracy
o Grouped by class and not reviewed individually
• Overtime, things change
o If never depart from previous cases, locked into ridged inflexible rule of law?
Not every jurisdiction uses precedents
Civil code/law used in Quebec, France, Spain, Italy, Louisiana, used in meaning to describe a legal system not based on
case law/common law
• Looks at each individual case on its merits.
How does precedents really work?
Look on court system. (Provincial court structure)
OCA…MCA…Court of appeal…
TC, TC, TC… TC, TC, TC…
Federal court structure (matters of federal jurisdiction)
That’s heard by the provincial courts (although it’s federal jurisdiction) ▯ criminal law
1. Binding precedent
Decisions of a higher court are binding on all lower courts (all other courts than SCC)
i.e. decision of OCA are all binding on all Ontario TC but not MCA, however, OCA decision will be persuasive (decisions
given great weight in terms of authority but are not binding)
FCA binding on FTC not any provincial TC
2. Persuasive precedent
Will be persuaded by it but not bound to follow Courts of the same level are not bound by their own precedents but the precedents are highly persuasive
TC decisions are not bound by other TC but unless there is a critical reason, they will follow precedents of other TC
Three people wants to be declared legal guardians of a child, all precedents leaned the other way (only 2 people can be
Bio mom, bio dad and lesbian partner of mom
All three were on very good terms with each other and the child, very aligned with strategy to raise child
Court of appeal declared that all three could be legal parents
SCC is not bound by its prior decisions and often revisits previous decisions.
i.e. when women are declared legally people by the courts
1. Don’t require courts always adhere to precedents but strongly encourage it.
• Law changes over time, but not easily
• Lags behind social change and some people can be affected
o Better to have law lag behind normative values than it trying to be out of firm
o It’s the conservative approach
2. What to do when no cases are exactly the same but decisions are made on precedents?
Allow judges to distinguish cases on facts
• Facts are sufficiently different from the other case to allow for a different outcome
• Judges get to decide when they’re going to do that: apply or not apply a precedent
• ????? (35:00)
Not the entire decision that’s binding.
Precedent: only the ratio (reasons for the decisions) of a case that’s actually binding, although other parts of the case may
Ratio of facts and law: essence of the case, combination of relevant facts and legal principles that cause the court to make
the decision it did (reason for the decision)
Obiter: other stuff said.
It’s binding if it’s ratio but not obiter.
If want precedent to apply, will define ratio broadly and vice versa (narrowly) to change its impact on the case
• Reasonable for people to disagree on what the ratio is
Supreme court of Canada
Duty of care owed by auditors in a company
Contains some ratio and a great deal of obiter
Not binding on SCC but binding on all courts lower than SCC, but only the ratio.
Could argue that a court is not bound by a certain principle in Hercules management because it’s not binding
Argument on the other side: may not be binding, but it’s a decision of SCC, it may be obiter, but should be highly
persuaded by it because it’s SCC.
To say something is obiter is not saying something is meaningless, it just says that….
What if a TC says if the facts are different, must be obiter?
Obiter of a TC decision is weakly persuasive because it’s a low level court and not even a ratio of the case
• A court can easily disregard in a decision without tremendous fear of being obiter If can’t find binding precedent, try to find persuasive precedent ▯court of appeal or SCC
Analogous matter in SCC, not the same issue but can argue that??
Can also go to foreign jurisdictions i.e. US Supreme Court decision… not binding but highly persuasive
What if we don’t have any precedents or foreign jurisdictions or anything?
Argue from first principle, based on principle of fairness and justice
Grab analogies… i.e. what should the law be.
What stops judges from ??? every case?
The appeal process c▯ hecking balance on the system
Judges don’t like to be appealed
• Very difficult to become a judge
• Generally try very hard not to be appealed
Can make whatever decision they want subject to being appealed. However with SCC, there’s no route to go beyond
What can you do if you don’t like the decision of SCC?
Appeal to the government
Statues trump case law
If government doesn’t like decision by SCC, can pass a law (address it legislatively)
A chief judge of the SCC ▯almost never with majority, decisions were almost never ratio
• So even in decent of obiter, highly persuasive
Malette vs. Schulman
Woman didn’t want blood transfusion, but doctor at ER still did it.
• She sued for intentional tort of battery
• Court ruled in favor of the right of her own body, she got $20,000
Ontario court of appeal
If the court is not OCA, it’s TC or SCC
If it’s an Ontario court and not OCA, it’s Ontario TC
How broad/narrow her refusal was: narrow because it was for a religious reason
Fortey (guardian ad Litem) v. Canada (A.G.)
Guardian ad Litem: the guy is a minor; an adult who does on his behalf is a litigation guardian
Minor on side of the road with massive side injury, police saw him and tried to persuade him to go to the hospital
He was drunk, angry, profane and obstinate.
Police left and minor sued him for negligence ▯didn’t act when they should have.
Court said police was negligent.
BC Court of appeal
Coming to completely different outcomes
One says can give medical treatment when refused the other court say you can’t?
a. When an adult refuses treatment you can’t continue but can disregard if it’s a minor
2. State of mind
a. One was drunk and the other made the decision is assumed to be sober when she signed the card b. Wishes can be honored if sober and consciously agreed, but if drunk, wishes can be overwritten
3. The woman’s request was made on religious grounds, motivation for refusal to undergo treatment
4. This case was an omissions whereas the doctor is a positive act: environmental circumstances
5. Law is different in BC and Ontario
a. Must comply with me