Chapter 2 - Introduction to the Legal System
What is law?
There is no wholly satisfactory definition of law. However, the following simplified definition
Law is the body of rules made by government that can be enforced by the courts or
by other government agencies.
Do not confuse law and morality: legal compliance and ethical behaviour are two different
Categories of law
The primary categories of law are substantive law and procedural laws.
Substantive law establishes the rights and limits that an individual has in society.
Procedural law determines how substantive law will be enforced.
Law can also be distinguished by its private and public function
Public law includes constitutional law that determines how the country is governed and
the laws that affect an individual’s relationship with government, including criminal law and
the regulations created by government agencies.
Private law involves the rules that govern our personal, social, and business relations,
which are enforced by one person suing another in a private or civil action.
Origins of law
Quebec has adopted the civil law legal system whereas all the other provinces are using
the common law legal system.
Civil law legal system
Civil Code is used throughout the world; it is the central Code, a list of rules stated as
broad principles of law that judges apply to the cases that come before them. It includes
people’s legal rights or obligations.
Civil Code system – the Civil Code ultimately determines the principle to be applied in a
case, prior decisions do not constitute binding precedents in a civil law jurisdiction.
Civil Code provides predictability
In the Civil Code system, precedents can be ignored – a new law is in effect, passed
precedents will no longer be applicable. Consistency is reduced where preceding court
decisions can be ignored.
Common law legal system
Common law grew from struggle for power. Relations between the existing English and
French kingdoms were frequently strained. This strain might the reason England maintained its unique common law system of justice rather than adopting the more widely
accepted Roman civil law.
Common law principles came from the common people – their traditions and customs.
It is the process of “following precedent”. Judges follow decisions – if made within
that court’s hierarchy.
The decision of a judge at one level is binding on all judges in the court hierarchy
who function in a court of lower rank, provided the facts in the two cases are similar.
The role stare decisis plays in the English common law legal system is similar to the
role the Civil Code plays in the French system. It allows the parties to predict the
outcome of the litigation and thus avoid going to court. Predictability
Flexibility – a judge can choose not to apply precedent decisions by finding essential
differences between the facts of the two cases. Distinguishing the facts
Sources of law
Common law – traditions and customs are the major sources of common law
Common law, in theory, was not created but merely discovered in the customs and
traditions of the people to whom it was to be applied.
Common law borrowed legal principles from many different sources:
Roman civil law – concepts of property and possessions
Canon law – law in relation to families and estates
Law merchant – law relating to negotiable instruments, such as cheques and promissory
Common law had serious limitations. The inflexibility and lack of remedies, therefore the
Court of Chancery (Court of Equity) is created to try to resolve this problem.
Court of Equity ignored the rules of precedence, resulting in the law of equity, deciding a
case on its merits. There was no uniformity within the system, every decision looked
Although the two court system merged, but the bodies of law they created did not. Equity
does not simply mean fairness, they are rules developed by the court of chancery.
Equity is a supplement to the common law.
Parliamentary enactments are referred to as statues or legislation; it overrides judge-made
1. Legislative - Parliament legislate the law. 2. Judicial – The court system makes judicial decisions and interprets legislation &
makes case laws
3. Administrative – this is the executive branch for which it implements the laws
Law in Canada
Every jurisdiction except Quebec adopted the English common law legal system.
The British North America Act (Constitution Act) created Canada and divided powers.
Rule of Law – although the parliament is supreme and can create any law considered
appropriate, citizens are protected from the arbitrary actions of the government. All actions
of government must be authorized by a valid legislation.
There is more to Canadian Constitution than BNAACT and Charter:
Constitution Act 1867,
Statue of Westminster 1931,
Constitution Act 1982,
Charter of Rights and Freedoms,
Constitution Act 1999
Canada's Constitution is, the “rulebook” that government must follow. It is comprised of
the following three elements:
1. Statues, such as the Constitution Act
1. Conventions, unwritten rules dictating how the government is to operate and
include the rule of law
1. Case law on Constitution issues, such as whether the federal or provincial
government has jurisdiction to create certain statues
Constitution and Division of Powers
Although the Parliament is supreme, Constitution Act and Charter of Rights and Freedoms
place some limitation to federal and provincial governments.
Constitution Act 1867 divide powers between federal and provincial governments
Federal powers set out in sec. 91
Provincial powers set out in sec. 92
Division of Powers
Federal – Section 91 Provincial – Section 92
Trade and commerce Municipal institutions
Employment insurance Hospitals
Raising monies by any mode of Direct taxation within the province
taxation Administration of justice within the province
Criminal law Property and civil rights
Banking, currency, postal service Generally, matters of a local or private nature
Residual power under the POGG
clause When determining the constitutional validity of legislation, courts examine the essence of
laws – what is the main purpose of the law and does the government which enacted
the law have the constitutional jurisdiction to regulate that concern.
Laws upheld if interference with another jurisdiction’s ;ower is incidental – Intra vires
Validity of statue determined by its true nature
E.g. Municipal governments have tried to control prostitution or pornography, using
their zoning or licensing power, when in fact these matters are controlled by criminal
law, a federal area. Such bylaws have been struck down as ultra vires, (beyond
one’s jurisdiction or power)
The principle of paramountcy require that the federal legislation to be operative and
that the provincial legislation go into abeyance and no longer apply when the powers
of the federal and provincial governments overlap.
An individual must obey both by adhering to the higher standard, whether provincial or
deferral. It is only when the laws are such that only one can be obeyed that a true conflict
exists, and then the federal provision will prevail.
Delegation of Powers,
Direct delegation of power is prohibited however, indirect delegation is permitted.
E.g. Federal government can delegate its power to an inferior body so can provincial
governments. (i.e. federal boards, provincial boards)
Agreements of Share Powers
Legislation is introduced to the parliamentary process in the form of a bill, which
goes through a sequence of introduction, debate, modification, and approval that is
referred to as first, second, and third readings.
When a bill is enact, is has a status of statute.
Statue needs to receive the approval of the Governor General in the federal level or
the Lieutenant—Governor in a province, this process is referred to as receiving
Federal and provincial statues complied and published, regulations are also
published, judges interpret and apply statutes, decisions then create precedents.
Protection of Rights and Freedoms
Because Canada adopted the common law legal system,Rights and freedoms were
historically protected by convention. However, since WWII, issue arises.
Canadian Bill of Rights
Because it is not entrenched in the Constitution, Bill of Rights is another statue,
although it is the first attempt at limiting the feral government's power to pass
legislation that violates basic human rights.
Charter of Rights and Freedoms Since the Charter is within the Constitution, neither federal government nor provinces
have the power to modify or interfere with the basic rights set out in the Charter.
(Except through constitutional amendment)
The Constitution includes the Charter, for which they are both the supreme law of
Canada, courts are empowered to strike down offending statues,
Section 1 of the Charter of Rights and Freedoms allows "reasonable
limits" on those rights and freedoms when limiting them can be "demonstrably
justified in a free and democratic society"
Government can interfere with basic rights and freedoms if it is reasonable to
Section 33 "Notwithstanding Clause" can override sections of fundamental
freedoms (freedom of thought, belief, and opinion), legal rights(right of life,
liberty, security and unreasonable imprisonment) , and equality rights(the right
not to be discriminated) simply by stating that the new legislation operates
"notwithstanding" the Charter.
Sunset clause: this ensures that if the notwithstanding clause is invoked, the
statute must be re-enacted by that legislative body every five years. This forces
a re-examination of the decision to override the Charter.
Section 32(1) The third limitation is the restriction of the operation of the
Charter to government and government-related activities.
The Charter applies only to matters falling within the authority of "the
Parliament and government of Canada" and the territories
Where does the government stop, when does the government start acting
in a private capacity?
When government agencies act in their private capacity, they must in turn
comply with the provisions of the Charter. If a section of a statue is in
conflict with the provisions of the Charter, the offending section will be
void, or an appropriate section will be added.
Charter applies to private institutions acting as arms of government. It is
important to remember that the provisions of the Charter apply not only to
the regulations and enactments of these government bodies but also to
the conduct of government officials employed by them. If they acting in a
way that violates the provisions of the Charter, either they are not acting
within their authority or the statue authorizing their conduct is itself in
violation of the Charter. In either case, such offending conduct can be
challenged under the Charter. Charter Provisions
1. Fundamental Freedoms (Section 2)
Everyone in Canada has right to freedom of conscience and religion;
of thought, belief and opinion; of the press; of peaceful assembly; of
However, when the expression of those freedoms or the activities
associated with them interferes with the freedoms of others, the courts
may restrict those freedoms by applying section 1 of the Charter.
Freedom of expression, includes freedom of press, it builds the
democratic nature of Canada
However, limitations such as the laws of defamation and obscenity may
Collective bargaining is the most significant collective activity through
which freedom of association is expressed in the labor context. Laws
that restrict collective bargaining rights are thus subject to Charter
1. Democratic Rights (Section 3,4 and 5)
The rights to vote and to qualify to be elected to the House of Commons
or the provincial legislative assemblies.
Reasonable limitations can be put on the right to vote (i.e. underage,
mentally incompetent, etc.)
Section 4 ensures that there will be an election at least every five years,
except in the times of war, section 5 requires that the elected body be
called into session at least once every 12 months.
1. Mobility Rights (Section 6)
This section ensures that Canadians can travel and live anywhere within
the geographic limitations of Canada as well as enter and leave the
country at will.
1. Legal Rights (Section 7, 8 and 9)
To protect individuals from unreasonable interference from the
government or its agents and to ensure that when there is interference, it
is done in a way that is both procedurally fair and consistent with basic
principles of fundamental justice.
The right to life, liberty, and the security of person and the right not to
have these rights taken away, except in accordance with the "principles of
Everyone has a right to life, liberty, and security of person - everyone is
entitled to procedural fairness.
Section 8 and 9:
Ensures everyone to be secure from unreasonable search and seizure
and arbitrary imprisonment The court can exclude evidence obtained in violation of these where not
to do so "would bring the administration of justice into disrepute"
1. Equality Rights Section 15
This section prohibits discrimination in the application of the law on the
basis of gender, religion, race, age, or national origin and sure that all
people in Canada have the same claim to the protection and benefits of
Every person is to be equal before and under the law. Anytime a
distinction is made in any provincial or federal law or by a government
official on the basis of one of these categories, it can be challenged as
Even though a category may not be listed, there is a general prohibition
against such discrimination, the courts tend to interpret the Constitution
and its provisions broadly.
Discrimination may be allowed if its purpose is to correct an imbalance.
Section 28 guarantees that the provisions of the Charter apply equally to
males and females.
Section 15 can be overridden by a notwithstanding clause, however,
section 28 cannot.
Section 35 states that the Charter in no way affects the aboriginal and
treaty rights of the native people of Canada. Even though this may seem
to preserve inequality rather than eliminating it. The purpose of this
provision is protect the special-status that the natives groups obtained
through the land claim disputes.
1. Language Rights (16-22)
Ensures that French and English have equal status and that the rights of
minorities to use those languages are protected.
Section 16 of the Charter declares that English and French are the official
languages of Canada (federally) French and English have equal status -
Canada and New Brunswick.
Only province in the federation that is constitutionally bilingual
Section 23 guarantees the citizens of Canada can receive their primary
education in English or French.
1. Section 52
Important amendments are made:
Section 92A, this section expands the power of the provinces to
make law with respect to non-renewable natural resources,
including the generation of electric power and forestry resources.
Due to the broad and generalized nature of the Charter, the court has
been forced to play a more active role in interpreting the broad
statements and filling in the gaps and thus making new laws. The Constitution Act 1982 also eliminated the requirement that nay major
change involving Canada's Constitution had to be made by an act of the
Parliament of Great Britain.
Quebec did not agree with patriating the Constitution
Human Rights Legislation
The Canadian Bill of Rights and the Charter address protecting
individuals' rights from abuses by government, and from abuse by
other members of the public.
Complaints coming from a federally regulated institution goes to
The Canadian Human Rights Commission (CHRC)
Whereas, from a provincially regulated institution, it goes to
The Provincial Human Rights Commission
These statues aim to ensure that individuals will have access to
employment, access to facilities and services customarily available
to the public, accommodation, without the barriers created through
Human rights commissions: Both the federal and the provincial
governments have set up special human rights tribunals authorized
to hear complaints of human rights violations, to investigate, and
where appropriate, to impose significant sanctions and remedies.
Though, a complaint before the CHRC must be filed within 12
months of the alleged incident. Then Commission will attempt
settlement through conciliation and investigation, if not, a panel
hearing is convened.
• Discrimination by private facilities is not prohibited by the
• On the other hand, the field of employment is impacted
significantly by human rights legislation. (i.e. religious belief worship
day day-off, accommodation to the disabled, protection again sexual
A workable definition
Law is the body of rules made by government that can be enforced by courts or
Categories of law
Substantive law governs behavior
Procedural law regulates enforcement processes
Public law comprises constitutional, criminal, and administrative laws,
Private law involves one person's suing another
Origins of law
Codes in civil law jurisdictions
Judge-made laws and precedents in common law jurisdictions Sources of Canadian law
Equity from chancery courts
Statutes - legislation of federal and provincial governments
Constitution of Canada
Constitution Act 1867 (BNAAct)
Constitution Act 1982, including the Charter of Rights and Freedoms
Various other statutes
Various statutes that have Constitutional status
Conventions and traditions
Case law on constitutional issues
Constitution Act 1867
Created the Dominion of Canada and established its structures
Divides power between federal and provincial governments
Legislative powers are set out in sections 91 and 92
Courts interpret and rule on constitutional issues
Charter of Rights and Freedom
All legislation must be compliant with the Charter
Applies to relationships with government
Limited by sections 1, 32 and 33
Human rights legislation
Federal - provides protection against discrimination by businesses that fall under
Provincial - protects individuals in private relationships; addresses discriminatory
practices by parties under provincial regulation
Chapter 3 The Resolution of Disputes - The Courts and
Alternatives to Litigation
1. Describe the court system in Canada
2. Outline the process of civil litigation
3. Explain the nature and function of regulatory bodies
4. Identify the restrictions on the decision-making power of such bodies
5. Explain the power of the courts to review the decisions of these bodies
6. Describe the alternative dispute resolution (ADR) methods - negotiations,
7. Identify the advantages and disadvantages of ADR The Courts
As a general rule, Canadian courts are open to the public. However, there are important
exceptions - when children are involved, or in cases involving sexual assaults, the more
common practice is to hold an open hearing but prohibit the publication of the names of
The courts in Canada functions in both criminal prosecutions and civil disputes.
Balance of probabilities -
Civil and criminals actions are different. In civil actions, the court act as an referee to
adjudicate a dispute, the claim needs to show that there is greater than 50 percent
likelihood that the events took place as claimed.
Beyond reasonable doubt -
In criminal prosecutions, a judge must be convinced beyond a reasonable doubt of
the guilt of the accused. This is a much more stringent test that, even when it is
likely or probably that the accused committed the crime, the accused must be found
not guilty if there is any reasonable doubt of guilt.
However, It is possible for a person face both criminal and civil trial at the same time.
Criminal law is restricted to the matters found in the Criminal Code. However, there is a
broader area of law that subjects people to fines and imprisonment but does not qualify as
criminal law - environmental, fishing, and employment offences (regulator offences)
Trial Courts of the Provinces
The nature and structure are different between provinces.
However, there is essentially four levels:
(1) Supreme Court of Canada,
(2) Provincial Court of Appeal
(3) Provincial Superior Courts
(4) Provincial Courts •
Small claims courts and family courts
It is before the trail courts that the disputing parties in a civil case first appear and testify,
the witnesses give evidence, the lawyers present arguments, and judges make decisions.
Judge & Jury
A judge makes findings of the law, and a jury makes findings of the facts
When only a judge is present, he/she makes both matters of laws and facts.
Canada's system of courts is dynamic; it is constantly changing o reflect changes in
Canadian society. Court reforms dictate change.
• Drug treatment courts have been established. These courts emphasize on the
treatment of addicts, not incarceration.
Drug treatment has been proven more effective than incarceration.
• Domestic violence courts have been established.
• These courts deal with spousal, elder, and child abuse.
• It officers specialized investigations by police, counseling services,
prosecution of repeat offenders and support service for victims
• Unified family courts
It has jurisdiction over all legal issues related to the family and do not deal with
any other types of cases
• Mental health courts (those guilt because of mental disorders, )
• Focus on treatment and rehabilitation
• Sentencing circles
• For cases involving aboriginal offenders and victims
• Specialized courts dedicated to Aboriginals are established.
Courts of Appeal of the Provinces
This is the court of last resort for most cases.
It will only consider a case when questions of law are in dispute, not questions of fact.
It does not hold a new trail, the assumption is that the judge who saw and heard all of the
evidence presented are best qualified to determine questions of fact.
Courts at the Federal Level
The Federal Court and Federal Court of Appeal serve a function similar to that of the
provincial superior courts.
It hears disputes that fall within the federal sphere of power. (such as those concerning
copyrights and patents, federal boards and commissions, federal lands or money, and
federal government contracts.
The Tax Court of Canada is a specialized court that deals with disputes concerning federal
Enforcing the following taxation statutes,
Income Tax Act
The Employment Insurance Act
Old Age Security Act
Courts Administration Service Act The Supreme Court of Canada
It is the highest court in the land. It has a strictly appellate function as far as private
citizens are concerned.
Supreme Court decisions set binding precedents for all other courts in Canada
The Process of Civil Litigation Before a decision is made to sue someone, all avenues for settling the dispute outside of
litigation ought to be exhausted.
Alternative methods include: negotiation, mediation, and arbitration.
Before a trial procedure is instigated, all of the above dispute-resolution mechanisms
should have been used.
The discussion below is based on the procedure followed in British Columbia, since there
are some variations from province to province.
• Court action must be brought within a relatively short time from the event
giving rise to the complaint
• Failure to commence an action by filing the appropriate pleading, will
result in the plaintiff being barred from pursuing the action.
Generally, the plaintiff choose a court in the area where the defendant resides or in
the area where the matter arose.
Once province has been chose, the plaintiff must then choose the court in which to
commence the litigation.
In a civil action, this is either the province's small claims court or superior court.
Small claims court is simple but only minimal costs are recovered.
The traditional way to commence an action in a superior court was for the plaintiff to
issue a writ of summons.
If the defendant chooses to dispute the claim, he must promptly file an appearance
with the court clerk.
A statement of claim is to be served on the defendant (it sets out in detail the
A statement of defense, it provides answers to the claims of the plaintiff stating
areas of agreement, disputed claims, and contrary allegations must be filed by the
The documents used to start and defend a lawsuit constitute the pleadings.
Once pleadings have been closed, parties often set a date for trial and begin
the process of discovery.
1. Discovery of documents
Each party has the right to inspect any document in the possession of the
other party that may be used as evidence in the trial.
1. Examination for discovery
The parties meet before a court reporter and, under oath, are asked
detailed questions relevant to the problem to be tried. (Parties are
required to answer fully and truthfully)
A pre-trial conference must be scheduled (both parties, lawyers and judges)
It is held to determine which issues remain to be tried and whether the
parties can themselves resolve the dispute.
Either parties can make an official offer to settle to end the matter. Recent Initiatives
Provinces have implemented reforms to speed up the litigation proces,
especially when smaller amounts are involved.
The burden of proof at trial rests with the plaintiff, the plaintiff's case and witnesses
are presented first.
The types of questions that may be asked by the plaintiff's lawyer maybe very
limited. (e.g. no leading questions,)
• The defense has more latitude in the type of questions asked.
• The rules governing the type of testimony that can be obtained
from witnesses are referred to as rules of evidence.
When the plaintiff is finished, the defense presents its case.
If a jury is involved, the judge will instruct it on matters of law The jury will then
consider and make its decision. The function of a jury is to decide the matters of fact.
In small claims court, the winning party normally will not recover the costs of
obtaining the services of a lawyer from the losing party.
In higher-level courts, a judge has the discretion to award cost. Party and party
costs are usually awarded to the victorious party in a civil action.
Losing party usually pays costs, & legal expenses usually not completely
The most common remedy is monetary payment in the form of damages. It is
designed to compensate the victim for any loss suffered.
General damages are based on estimates ,such as when the court awards
compensation to a litigant for pain and suffering or for future lost wages.
Special damages are calculated to reimburse the litigant for expenses or costs
incurred before the trial.
Punitive or exemplary damages are intended not to compensate the victim
but rather to punish the wrongdoer for outrageous behavior.
Other remedies include,
Accounting - any profits derived from the defendant's wrongful conduct
to be paid over to the victim.
Injunction - stops the wrongful conduct or correcting some continuing
Specific performance - compel proper performance of a legal obligation
by specific performance
Declaration - A declaration made as to the law and the legal rights of the
If the judgment debtor refused to pay, steps must be taken by the plaintiff, now the
judgment creditor, to enforce the judgment. A dry judgment - the judgment debtor cannot pay and owns no assets. Then the
judgment creditor gets nothing and also has to pay its own legal expenses.
*A judgment does not ensure payment.
When judgment has been obtained, a further hearing is provided, sometimes
called the examination in aid of execution, to determine the judgment
debtor's asset and income that can be seized or garnished to satisfy the
Seizure of Property
• The execution process allows for the seizure and eventual sale of
the debtor's property to satisfy the judgment.
The proceeds are distributed first to secured creditors, then to
preferred creditors, and finally on a pro rata (proportionate) basis,
to the remaining unsecured creditors.
• Proceeds of sale are shared by all creditors.
• Secured creditors, they used the property in question as security
for a loan.
Preferred creditors are those who, by legislation must be paid
before other unsecured creditors. (e.g. landlords, employees, and
• Not all property is subject to seizure. "Necessities of life" are
exempt fro seizure. (e.g. food, clothing, household furnishings and etc.)
• Garnishment involves the interception of funds owed to the
judgment debtor and the payment of those funds into court.
Judicial Remedies Before Judgment
Due to the risk of properties or assets being removed or sold from the defendant, the
court may sometimes grant an interim order to ensure that the goods will be
available to satisfy a judgment if one is ultimately guilty. (It prevents the debtor to
dissipate or abscond with them)
Dealing with Regulatory Bodies
Government can be divided into three different functions:
The executive branch includes the Prime Minister, the Premiers of the provinces, the
Cabinet Ministers, and all of the civil servants in the various government departments.
(The theoretical head of the executive branch is the Queen)
Government objectives are achieved through rule enforcement, economic incentives, and
Government departments establish regulatory bodies, or administrative tribunals, such
as labor relations boards, human rights commission, and workers' compensation boards
to implement and enforce their policies.
A administrative tribunal generally has more discretion than a judge. As long as the
administrative decision maker acted within the authority granted, and any discretion was exercised in a fair and honest way so that the decision can be said to be reasonable, the
decision will stand.
Procedural Fairness in Tribunals
To determine our rights before such tribunals, there are several questions that must
1. From where did the tribunal derive its authority
2. Was the decision-making process fair
3. What recourse is there if there has been a failure in jurisdiction or procedure
(1) The authority of the decision maker
• Authority is granted by a statute or by a regulation created pursuant to
• Rules of statutory interpretation
• Most jurisdictions provide a general interpretation statute to
provide further guidance.
• Statutes must be passed by appropriate level of government
• Statutes and regulations must comply with the Charter
(2) The fairness of the process
• The minimum standards of procedural fairness, (rules of natural justice)
set a basic standard.
• Fair hearing: the person affected by the decision must be notified
hat a decision was going to be made and he must be given an opportunity
(Notice must be given and all information must be disclosed)
• Decisions to be made by the persons hearing the evidence
• The decision makers must be impartial ( 公公公). Any indication of
bias will normally be sufficient grounds to have he decision overturned.
(3) Reviewing a decision
For the courts to exercise their right of judicial review, one of the following must
1. When the validity of the statute or regulation is in question (invalid
statue or regulation)
2. When the decision maker has acted outside his authority
3. When an error of law on the record has been made
4. When the decision-making process itself has failed to follow the
requirements of procedural fairness (the rules of natural justice)
5. When there has been an abuse of power
Methods of Judicial Review
Obtaining a prerogative write from the court:
An order declaring that the decision made by the tribunal is void and
of no effect
A writ of prohibition is given before a hearing to the tribunal, ordering
it not to proceed.
Mandamus An order of mandamus is given to a tribunal that is stalling, ordering
it to get on with it and make a decision.
In addition, the court always have the right to make a declaratory judgment.
Private clauses, designed to stop the courts from reviewing the board's
Challenging administrative decisions may be futile and costly
Alternatives to Court Action
What is Alternative Dispute Resolution
When the decision making is left in the hands of the disputing parties to work
out for themselves
When a neutral third party assists the parties in coming to a resolution on their
When a third party makes a binding decision in the matter under dispute
The arbitrator is chosen from a pool of trained and certified professionals,
often with expertise in the subject matter of the dispute. (Procedure must
Chapter 2&3 Lecture
The Legal System and Resolution of Disputes
What is law?
Different perspectives in defining what a law is.
Abstract code of conduct, it pre-exists. All born with this inherent right to be
Laws are created by those who has authority.
Not only a law needs to be passed. A court also has to be willing to enforce that
Law and morality
Law and morality is different.
Working definition of law:
Law is the body of rules made by government that can be enforced by the courts
or by other government agencies. (i.e. Rules the state will enforce)
Categories of Law
What you get the rights and limits that an individual has in society
How you get it
determines how substantive law will be enforced.
Constitutional, criminal, administrative
Tort, contract, property, wills, and estates
(Normally one needs to hire a lawyer to pursue actions)
Two main legal systems：
Common Law (English)
Used in commonwealth countries, and all provinces except Quebec
• Governmental statutes
Civil Law (Roman/French)
Used in Quebec and most countries in South America, Africa, and
• Civil Code
Civil System - codified (Quebec)
Emperor Justinian had Roman Law codified in Roman times, modified by
Common Law - Judge-made law, precedents are important
Stare decisis: the decision of a judge at one level is binding on all judges in
the court hierarchy who function in a court of law rank, provided the facts in
the two cases are similar.
• Provinces to province are different, however, it is not binding to the same
R V. Clough (pg. 27)
• Decision of judge at one level only apply to courts of a lower rank.
• Decision in a different jurisdiction would be persuasive, not binding.
• Persuasive versus Binding
• Distinguishing the facts
Sources of law
Common law (Complete)
• Law wasn't created, rather, it was discovered in the common customs
and traditions of local communities
• Borrowed from
Roman civil law
Canon (Church) law
• Historically extremely rigid. The law was too restrictive.
• People went straight to the King, therefore the Court of Chancery is then
Equity - Court of Equity(own separate body of law)
• Supplement to common law •
What is really fair? Intuitively, what is the right thing to do
• Not applying the law, therefore, they apply equitable rights (what is really
• Two amalgamated because the two
• Equitable remedies
• Parliament became supreme, and their enactments known as statutes
Three branches of the government
• Executive (Administrative)
Any agencies created by the government, tribunals, any
1. Legislative (Parliament)
Enacts the law
Legislation, through enabling statues, create bodies and delegates power
to them to create regulation
Regulation = subordinate legislation
e.g. Ontario Disability Support Program
The Act sets out what it means to be a disabled person
The regulations will say when you are eligible, how the money will be
sent out and etc.
Law in Canada
• Dominion of Canada created in 1867, through the British North American
Preamble "similar in principle to UK"
Unwritten conventions: Rule of Law
BNAAct 1867- Division of Powers
Federal: banking, shipping, navigation, criminal law, and POGG (Peace,
Oder, and Good Governance) - residual power,
Provincial: Property and Civil rights
What jurisdiction are matters of pollution under? Federal or Provincial
Ultra vires vs intra vires
Ultra vires to their jurisdiction - meaning the government does not have
jurisdiction over such matters
Pith and substance
Doesn't matter what the law disguises itself to be, the jurisdiction
depends on the nature of the law.
Constitution Act 1982 Gave Canada power to amend its constitution (i.e. ending ties with England)
Lists government enactments having constitutional status
Establishes amending formula for constitutional change
Charter of Rights and Freedom: limits supremacy of Parliament
Laws are passed by both provincial and federal powers
Conflicts of Laws
• The principle of paramountcy require that the federal legislation to be
operative and that the provincial legislation go into abeyance and no longer
apply when the powers of the federal and provincial governments overlap.
• The federal government wins if there is a conflict.
Delegation of Power
Federal and Prov Gov't can delegate power to federal/prov' boards
Agreements to share power
Passages of Bills
Pass - Law
Need Stamp of Approval - Governor General/ Lieutenant General
Protection of Rights and Freedoms
Charter of Rights and Freedoms
• Constitution Act 1982
• Supreme Law
• Entrenched in the Constitution
• Applies to government action only
• S.33 notwithstanding clause
• S.1: reasonable limits clause
• S.24: remedies
s. 2 fundamental freedoms
s. 3, 4, 5: democratic rights
s. 6: mobility rights
s. 7, 8 and 9: legal rights
s. 15: equality rights (and afﬁrmative action)
s. 16-22: language rights
S1. Reasonable limits clause
S2. Fundamental freedoms
S7 Legal rights (life, liberty and security of person)
S15 Equality rights (affirmative action is okay)
Everyone has the right to be treated equally
S33. Notwithstanding Clause Resolution of Disputes
Criminal and Civil
• Standard of Proof
• One can be liable in both courts
• Civil Court - Balance of Probabilities
Is it more like than not, that the plaintiff is entitled to damages
More than 50% of likely
• Criminal Court
Beyond unreasonable doubt
Superior Courts have inherent jurisdiction
Trial and appellate
Open to Public
Supreme Court of Canada
Provincial Court of Appeal
Provincial Superior Court
Provincial Administrative Tribunals
Courts of Appeal deal with questions of law, not fact.
Pre trial conference
Offers to settle
Plaintiff has the burden of proof
Examination in chief
Follow rules of evidence
Pecuniary damages: Economic Loss Non-pecuniary damages: Non-economic loss
General damages: non-pecuniary damages + future
Special Damages: pre-trial pecuniary losses
examination in aid of execution
Seizure of property
Usually have specific expense
Quicker, more flexible, cheaper
Authority of decision maker - the authority has to be authorized by some sort of
Fairness of the process
Rules of Natural Justice
Principles of Fundamental Justice
The following concepts hasn't talked about:
Alternative Dispute Resolution
Chapter 4 - Intentional Torts and Torts Impacting Business
The Nature of Torts
Definition: Tort is committed when one person causes injury to another, harming his or her
person, property, or reputation. The right to sue for redress arises when then injurious
conduct falls below a minimum social standard. In others, a tort is a social or civil wrong
that gives rise to the right to sue and to seek one of several remedies.
The role of tort law is to compensate victims and deter wrongful conduct. (Requiring the
party at fault to bear the burden of loss suffered)
Crimes must be distinguished from torts. Harmful conduct that is so serious that it poses a
threat to society generally is said to be criminal in nature.
It is much easier to win a tort law sue than a crime because the standard of proof is
based on "balance of probabilities" rather than "beyond a reasonable doubt" A criminal court's goal is to punish the wrongdoer, not to compensate the victim,
because the conduct poses a threat the general society. Whereas tort is considered
a private matter where the victim of the injurious conduct sues the person
responsible for remedy.
(Crimes are wrongs that affect society as a whole)
A tort must also be distinguished from a breach of contract.
An act that breaches a contract may not be inherently wrong, but the contractual
relationship makes the violation of its terms unacceptable.
A tort is inherentl