Table of Contents:
Chapter 2 Introduction to the Legal system
Chapter 3 The resolution of Disputes The courts alternatives to litigation
Chapter 4 Intentional Torts & Torts Impacting Business
Chapter 5 Negligence, Professional Liability, and Insurance
Chapter 6 Formation of Contracts
Chapter 7 Formation of Contracts (Continued)
Chapter 8 Factors Affecting the Contractual Relationship
Chapter 9 The End of the contractual relationship
Chapter 2 Introduction to the Legal System
What is Law?
Natural law theorists Law being defined in moral terms, where only good rules are considered
Legal positivists Only rules enacted by those with authority to do so qualify as law
Legal realists Those rules that the courts are willing to enforce qualify as law
Law is the body rules made by government that can be enforced by the courts or by other government
Categories of Law
Substantive law establishes not only the rights an individual has in society but also the limits
on his or her conduct.
o What you get found in common law or statutes.
Procedural law determines how the substantive laws will be enforced.
o how you get it, found only in statues and regulations.
Public law includes constitutional law that determines how the country is governed and the
laws that affect an individuals relationship with government, including criminal law and the
regulations created by government agencies.
o Relationship between individuals and the state, and administrative/constitutional law 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.
o relationship between individual vs. individual
**Criminal Law have to prove all elements of the case beyond reasonable doubt
*** Tort Law is based on a balance of probabilities
Origins of Law
Civil law legal system developed in Europe and now used in many jurisdictions, including
Quebec. The terms civil court, civil action, and civil law are also used within our common law
legal system to describe private law matters.
Prior decisions do not constitute binding precedents in a civil law jurisdiction.
o But in common law jurisdiction, the doctrine of following precedent would demand that
the courts look to similar cases for the principles to be applied.
Common Law Legal System
Stare Decisis a system of justice developed in which the judges were required to follow each
others decisions. (or following precedent)
o It allows parties to predict the outcome of the litigation and thus avoid going to court.
However, a significant disadvantage of following precedent is that a judge must follow
another judges decision even though social attitudes may have changed.
o Distinguishing the facts - Judges try to avoid applying precedent decisions by finding
essential differences between the facts of the two cases if they feel that the prior
decision will create an injustice in the present case.
Sources of Law
Common Law- Judge made law
Common law courts The court of common pleas, the court of kings bench, and the exchequer
court, referred to collectively as the common law courts.
Roman civil law which gave us our concepts of property and possessions.
Canon or church law contributed law in relation to families and estates.
Law merchant Trading between nations was performed by merchants who were members of
Equity Law of Equity - Unhampered by the rules of precedence, a judge could decide a case on its
Equity should be viewed as a supplement to, rather than replacement of, common law.
Common law is completealbeit somewhat unsatisfactorywithout equity, but equity would
be nothing without common law.
Government has several distinct functions
A provincial statute, such as Ontarios Muncipal Act, may enable municipalities to pass bylaws,
but only regard to matters stipulated in the Act.
Law in Canada
Constitution Act of 1867 - The BNA Acts primary significance is that it created the Dominion of
Canada, divided power between the legislative, executive, and judicial branches of government,
and determined the functions and powers of the provincial and federal levels of government.
Rule of law which recognizes that although Parliament is supreme and can create any law
considered appropriate, citizens are protected from arbitrary actions of the government.
o All actions of government and government agencies must be authorized by valid
Canadas Constitution the rulebook that governments must follow
o (1) statutes, such as the Constitution Act, and the statues creating various provinces
o (2) conventions, which are unwritten rules dictating how the government is to operate
and include the rule of law
o (3) case law on Constitution issues, such as whether the federal or provincial
government has jurisdiction to create certain statutes.
Constitution and Division of Powers
Parliament is supreme, and traditionally has had the power to make laws that cannot be
overruled by any other body.
The Constitution Act, 1867 assigned different legislative powers to the federal and provincial
Federal Government Section 91 o Power over matters as banking, currency, postal service, criminal law (not enforcement)
o Regulation of all import and export activities, taxation, environmental concerns, money
and banking, interprovincial and international transportation, intellectual property
Provincial Jurisdiction Section 92
o Hospitals, education, the administration of the courts, and commercial activities carried
on at the provincial level.
Under Peace, order and good government clause, the federal government has residual power
to make law with respect to things not listed in the Constitution at, 1867.
o Aka things that are not currently have laws for.
Pith and Substance used to determine the constitutional validity of legislation
o Aka what is the main purpose of the law and does government which enacted the law
have jurisdiction to regulate the concern
o Intra Vires within its power
o Ultra Vires outside of its power
o Colourable Legislation When a level of government tries to invade an area given to
another by trying to make it look like the legislation is of a different kind.
o Paramountcy When overlaps exist, Paramountcy, may require that the federal
legislation to be operative and that the provincial legislation go into abeyance and no
Federal > Provincial.
Delegation of Powers
Both legislative bodies are supreme parliaments in their assigned areas.
Although direct delegation is prohibited, it is possible for the federal and provincial governments
to delegate their powers to inferior bodies, such as boards and individual civil servants
This is usually the only way that governmental bodies can conduct their business
Agreements to Share Powers
These agreements may consist of transfer-payment schemes, or conditional grants under which
the transfer of funds from the federal government is tied to conditions on how the money is to
Bill step one, goes through a sequences of introduction, debate, modification and approval
that is referred to as first, second and third-readings
Royal Assent A bill cannot become a statute, recognized by law until the Governer General has
o This is a formality as the approval is an unwritten law
Statutes often empower government agencies to create further rules to carry out their function.