Textbook Notes (369,133)
Canada (162,403)
LAW 525 (12)
Chapter 2

CLAW525 Law of the MarketPlace chapter 2.docx

5 Pages
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Department
Law and Business
Course Code
LAW 525
Professor
Nick Iannazzo

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Chapter 2: Constitution & Charter of Rights & Freedom 1 – The Constitution Sources of Law: - Hierarchy of sources of law: 1. Constitution 2. Legislation 3. Courts The Constitution: - ConstitutionAct, 1982 - Basic Rules for Canadian Society, including its legal and political systems - Highest source of law - Very Difficult to amend 1. Require consent of: Parliament & 2/3 of all provinces with at least... (don’t need to know) The Constitution: 1) Division of Powers 2) Charter of Rights and Freedoms 3) Charter Remedies Division of Powers: - Constitution divides powers between 1. Federal Government 2. Provincial Government S. 91 – Federal Powers: - Powers are discussed in book - Note: Federal Government has residual powers – topics not allocated to provinces (e.g. telecommunications) anything not mentioned in constitution - Important ones: Criminal Law (includes health and safety), Trade and Commerce S. 92 – Provincial Powers: - Powers are discussed in book - Property and Civil Rights Ultra Vires Legislation: - Ultra Vires – Laws created outside a government authority are of no force or effect (section 52) - Intra Vires – Laws created within a governments authority are of legal force & effect - Companies sometimes look for ultra-vires laws so they can benefit from it since they are not enforceable 2 – Charter of Rights & Freedoms - Constitution Act, 1982 (includes charter) - Charter`s intent was to protect basic rights and freedoms from governments Charter of Rights and Freedoms: - S. 1 The Canadian Charter of R & F guarantees the rights & freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society S. 2 Fundamental Freedoms: - s.2 everyone (includes companies) has the following fundamental freedoms: 1. a) Freedom of conscience and religion 2. b) Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication; 3. c) Freedom of peacefully assembly; and 4. d) Freedom of association. S. 15 Equality Rights: - s. 15 (1) & s. 15(2) in book - s. 15(2) protects from reverse discrimination (e.g. arguing you want to park in a disabled parking spot) Notwithstanding Clause: - Section 33(1) Parliament or the legislature of a province may expressly declare that a law shall operation notwithstanding a provision in s. 2 or sections 7 to 15 of this charter 1. Allows government to make laws contradicting the charter - Section 33(3) – 5 Years limit to law; Quebec has used this for French laws (e.g. French restaurant signs Cases in the Chapter: - Challenging the validity of a law; 1. The law is ultra vires – beyond the governments constitutional jurisdiction; 2. The law violates the Charter CasesArguing Law is Ultra Vires: R. V. Cosman Furniture (M.C.A. 1976) (before constitution was around?) - Hazardous Products Act (Federal) – Prohibits sale of unsafe cribs and cradles - Cosman Furniture charged under HPAwith selling unsafe cribs and cradles - Cosman Furniture argued that HPA was invalid because it was outside the jurisdiction of the Federal Government - Federal Government argued that it was within its “criminal law” jurisdiction - Cosman furniture argued that federal government was infringing upon the provincial “property and civil rights” jurisdiction - “criminal law” jurisdiction includes laws having the purpose of preventing harm to society - “property and civil rights” jurisdiction includes real property, personal property, industry, advertising, contractual rights, insurance, etc. - Decision: 1. Although the HPA does have incidental effect on “property and civil rights” the essential purpose of the HPAis criminal law 2. Public purpose of safeguarding health and security of infants 3. HPAis valid – Intra Vires Cdn Western Bank, etc v. Alberta (SCC 2007): - Alberta InsuranceAct – Imposed restrictions & obligations upon banks - Banks argued that “banking” is a federal jurisdiction therefore Alberta did not have the power to
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